UMASS/AMHERST 


31EDt,t.DD5aDm53 


LIBRARY 


OF  THE 


MASSACHUSETTS 

AGRICULTURAL 

COLLEGE 

so  U  R  C  E  na  SS.._SocL.-^T.  PrDTOfltlO^./^r  ic 

73  

B27 
V.2 


PUBLICATIONS 

OF   THE 

laassacljusetts  .Societg  for  tije  promotion  of  Agriculture, 


FARM  LAW: 


A    TREATISE 


The  Legal  Eights  and  Liabilities 


OF    FARMERS, 


EDMUND  H.  BENNETT,  LL.  D., 


DEAN      OF      BOSTON      UNIVERSITY      SCHOOL       OF      LAW; 

FORMERLY  MEMBER    OF    THE   STATE    BOARD 

OF   AGRICULTURE. 


SALEM,    MASS.  :  / 

obs?:rveii  steam  book  axd.job  pkixt. 
1884. 


PUBLICATIONS 


[assacfjusetls  Socictg  for  t|)e  promotion  of  Slsriculture, 


FARM  LAW: 


A    TREATISE 


The  Legal  Rights  and  Liabilities 

OF    FARMERS. 


EDMUND   H.  BENNETT,  LL.  D, 


DEAN      OF      BOSTON      UNIVERSITY      SCHOOL       OF      LAW; 

FORMERLY   MEMBER    OF    THE    STATE    BOARD 

OF   AGRICULTURE. 


SALEM,    MASS.: 

OBSERVER    STEAM    BOOK    AND    JOB    PRIKT, 
18  84. 


NOTICE. 


The  substance  of  the  following  pages  was  originally  delivered 
as  a  lecture  before  the  Massachusetts  State  Board  of  Agricul- 
ture, at  Hingham,  Dec.  5,  187S.  Some  additions  have  since 
been  made,  and  a  table  of  contents  has  been  added.  The 
Massachusetts  Society  for  Promoting  Agriculture,  believing 
that  it  contains  much  that  is  of  general  interest  and  value, 
have  secured  the  permission  of  its  author  to  republish  it  for 
distribution  among  the  Farmers  of  the  State. 


CONTENTS. 


CHAPTER  L 

HOW   TO   BUY   A  FARM 9 

CHAPTER  II. 

HOW   FAR  THE    FARM  EXTENDS 12 

CHAPTER  III. 

WHAT  A   DEED   OF   A   FARM   INCLUDES. 15 

CHAPTER  ly. 

HIRING    HELP .  .  .18 

CHAPTER  V. 

RIGHTS  IN  THE   ROAD 22 

CHAPTER  VI. 

WAYS   OVER  THE   FARM .  .  .24 

CHAPTER  VII. 

RAILROADS  THROUGH   FARMS.  27 

CHAPTER  VIII. 

AS   TO    FARM    FENCES. 30 

CHAPTER  IX. 

IMPOUNDING   CATTLE. 3fi 

CHAPTER  X. 

FARMER'S    ANIMALS.      .  . 38 

CHAPTER  XI. 

ABOUT   DOGS 42 


8  CONTENT?;. 

CHAPTER  XII. 

LIAIULITY    FOR   HIS   INIEX.  46 

CHAPTER  XIII. 

ABOUT   FIRES.        .  .  .  .  .  • 48 

CHAPTER  Xiy. 

WATKR   RIGHTS    AND    DRAINAGE .  49 

CHAPTER  XV. 

TRESTASSING    ON    THE    FARM 52 

CHAPTER  XVI. 

OVERHANGING     TREES 66 

CHAPTER  XVII. 

UKMAHK    OF   TRAPS 58 


CHAPTER   I. 

HOW    TO    BUY    A    FARM. 


In  an  article  upon  the  legal  rights  and  duties  of  farmers,  the 
first  inquiry  naturally  is,  how  to  buy  a  farm. 

It  is  quite  generally  known  that  a  mere  oral  bargain  for  a 
farm  is  not  binding  in  law  upon  either  party  ;  but  it  may  not 
be  so  well  understood  that  an  offer  to  sell  a  farm  for  a  given 
price,  even  though  it  be  by  letter  or  other  similar  writing,  is 
not  binding  upon  the  proposer  until  actually  accepted  by  the 
buyer,  and  he  has  also  agreed  to  take  it,  and  pay  the  price 
stated  in  the  offer  ;  therefore  the  owner  may  retract  his  offer 
to  sell  at  any  time  before  it  is  accepted  and  he  is  notified  there- 
of. And  although,  in  making  his  offer  to  sell,  he  should  ex- 
pressly give  you  a  certain  number  of  days  in  which  to  decide 
whether  to  take  it  or  not,  he  may,  nevertheless,  change  his 
mind  in  the  mean  time,  if  you  have  not  accepted,  and  sell  to 
another  who  offers  a  higher  price,  even  before  the  given  time 
has  expired  ;  and  you  would  have  no  legal  redress  for  your  dis- 
appointment. Unless  indeed  you  had  taken  the  precaution  to 
have  your  offer  under  seal,  or  have  paid  some  "■consideration" 
for  the  refusal  of  the  farm  during  the  time  given. 

Nay,  more  ;  although  you  had  fully  made  up  your  mind  to 
take  the  farm,  but  had  not  notified  the  owner  of  that  fact,  and 
should  go  to  great  trouble  and  expense  in  buying  stock,  tools, 
agricultural  implements,  etc.,  to  carry  on  the  farm,  and  should 
even  move  your  family  there  to  take  possession,  the  owner 
might  even  then  refuse  to  sell,  and  you  would  have  no  legal 
remedy  either  to  compel  him  to  convey,  or  for  the  expenses 
you  had  thus  incurred  relying  upon  his  keeping  his  word.     In 


10  FARM    LAW. 

some  states,  although  the  l)argain  for  a  farm  be  oral,  yet  if  the 
purchaser  has  paid  part  of  the  price,  and  has  taken  possession 
and  incurred  expense  in  making  improvements,  a  court  of 
equity  will  compel  the  owner  to  make  a  conveyance,  as  he  ought 
to  do  without  such  compulsion;  but  this  may  not  be  universally 
so,  and  is  always  an  expensive  and  dilatory  remedy;  the  safer 
way  in  such  cases  is  to  take  a  bond  for  a  deed,  as  it  is  called. 
An  ordinary  "refusal"  of  property,  as  it  is  termed,  is  a  danger- 
ous thing  to  rely  upon,  unless  you  are  dealing  with  a  man 
whose  "word  is  as  good  as  his  bond,"  and  they  are  very  scarce  ! 
And,  if  a  pai-ticular  time  is  given  you  in  which  to  accept  an 
offer  to  sell,  you  should  be  particular  to  signify  your  acceptance 
strictly  within  the  tine,  and  to  do  so  entirely  unconditionally 
and  without  any  qualifications,  but  exactly  as  it  was  made. 
Ill  one  instance  a  man  had  ten  days  in  which  to  make  up  his 
mind,  and  on  the  niglit  of  the  last  day,  about  half-past  eleven 
at  night,  he  called  at  the  owner's  house,  after  he  was  abed  and 
asleep,  and  said  he  would  take  the  farm.  The  owner  refused 
to  get  up,  or  to  take  the  money  the  next  day,  and  the  buyer 
tried  to  get  the  farm  by  a  suit-at-law  ;  but  it  was  decided  that 
he  came  too  late  on  the  last  day,  and  he  not  only  lost  his  trade, 
but  had  to  pay  the  costs  of  his  suit.  In  another  case  A  wrote 
to  B  he  would  sell  him  his  farm  for  three  thousand  dollars 
casli.  B  wrote  back  immediately  he  would  take  it,  if  A  would 
make  out  liis  deed  and  send  it  to  a  lawyer  for  examination, 
and,  if  all  right,  the  lawyer  would  pay  him  his  three  thousand 
dollars ;  but  it  was  decided  that  B  had  not  duly  accepted  A's 
ofter,  because  he  did  not  enclose  the  cash  in  his  letter,  but 
asked  A  to  carry  liis  deed  to  a  third  person  for  examination, 
and  consequenlly  that  A  might  withdraw  and  sell  to  another 
party. 

If  tlie  negotiations  for  a  farm  are  by  letters,  some  peculiar 
comi)lications  may  arise. 

It  is  generally  understood  that  when  a  man  ofiers  to  sell  an- 
other a  farm  l)y  letter,  the  bargain  is  completely  closed  the 
moment  tlie  other  deposits  his  letter  of  acceptance  in  his  post- 
office,  duly   directed   to  the   former.       After  tliat  time  neither 


HOW    TO    BUY    A    FARM.  11 

party  is  at  liberty  to  change  his  mind  or  retract  his  steps.  And 
this  is  said  to  he  so  altliough  the  letter  miscarries,  or  the  mail 
is  robbed,  and  so  the  seller  never  hoars  that,  his  proposition 
has  been  accepted  at  all. 

If  therefore,  in  such  a  case,  tired  of  waiting  for  a  reply,  he 
should  sell  the  farm  in  good  faith  to  another,  the  first  party 
might  sue  him  for  non-fulfilment  of  his  contract  with  him,  and 
perhaps  compel  him  to  pay  heavy  damages.  Whereas,  if  he 
should  refuse  to  convey  the  farm  to  the  second  purchaser,  after 
he  had  learned  that  the  first  wished  to  claim  it,  the  last  might 
also  bring  suit,  and  so  the  poor  man  is  literally  "between  two 
fires."  This  seems  veiy  strange,  but  1  fear  such  is  the  gener- 
ally established  rule.  As  the  lawyers  say:  Ita  lex  scripta  est. 
If  it  be  so,  it  is,  like  some  other  things  written,  "hard  to  be 
understood!"  Another  singular  situation  might  arise  from  the 
principle  above  stated.  Suppose  the  would-be  buyer  changes 
his  mind  immediately  after  liis  letter  of  acceptance  has  been 
sent  off,  and  telegraphs  the  owner  that  he  decHites  to  take  the 
farm,  and  then  his  letter  of  acceptance  arrives  the  next  day, 
what  then, — can  the  owner  hold  him  to  take  it  ? 

But,  supposing  the  grantor  is  willing  to  give  you  a  deed,  it 
must,  in  many  states,  have  the  seal  of  the  grantor  at- 
tached, or  it  is  not  sufficient.  A  scroll  of  the  pen,  or  the  letters 
L.  S.,  are  sufficient  in  some  states,  but  it  is  always  safe  to  have 
a  seal.  It  may  not  be  as  well  understood  that  it  is  not  every- 
where necessary  that  a  deed  should  be  witnessed  or  acknowl- 
edged, and  recorded.  These  last  two  requisites  may  be  essen- 
tial to  make  the  deed  valid  against  the  creditors  of  the  grantor, 
or  any  one  who  subsequently  bought  the  farm  without  knowing 
of  the  prior  deed  ;  and  they  are  always  so  important  they 
should  never  be  neglected  ;  and  my  first  advice  to  you  is,  that, 
if  you  have  any  unrecorded  deeds  among  your  papers,  you  at- 
tend to  that  duty  forthwith. 


12  FARM    LAW 


CHAPTER  11. 

HOW    FAR    THE    FARM    EXTENDS. 


Having  once  obtained  a  sufficient  deed,  the  next  question 
seems  to  be  liow  far  the  farm  extends,  or  its  proper  boundaries. 
Three  circumstances  have  more  or  less  weight  in  determining 
this  question  : 

1  The  number  of  acres  stated  in  tlie  deed  ; 

2  The  length  of  the  boundary  lines  running  around  the  farm; 

3  The  visible  monuments,  such  as  trees,  rocks,  stake  and 
stones,  described  as  corners  of  the  farm. 

Of  these  three,  the  last  is  by  far  the  most  important,  and,  in 
case  of  any  ditference  between  them,  controls  all  the  rest.  If 
the  boundary  lines  are  described  as  beginning  at  a  certain 
stake  and  stones,  thence  to  a  certain  tree,  thence  to  a  particular 
rock  or  stump,  and  so  quite  around  the  farm,  the  deed  includes 
all  the  land  inside  of  those  monuments,  although  it  be  many 
more  acres  than  the  deed  calls  it,  and,  on  the  other  hand,  it 
will  really  convey  no  more,  although  the  number  of  acres  with- 
in such  bounds  be  much  less  than  stated  in  the  deed.  So,  if 
the  monuments  named  are  fixed  and  definite,  they  control  both 
the  course  and  the  length  of  the  side-lines  mentioned  in  the 
deed;  and  if  these  lines  be  called  a  hundred  feet  long  on  every 
side,  but  the  trees,  rocks,  stake  and  stones  described  as  corners, 
are  only  ninety  feet  apart,  the  buyer  will  acquire  a  lot  only 
ninety  feet  square,  and  not  a  hundred  feet ;  and,  vice  versa,  if 
the  lines  are  described  as  only  ninety  feet  long,  but  the  given 
corners  are  a  hundred  feet  from  each  other,  the  deed  covers  a 
lot  a  hundred  feet  square. 

The  quantity  of  acres  mentioned  is  the  very  weakest  means 
of  knowing  the  real  extent  of  the  farm,  although  they  be  stated 
positively,  and  not  under  the  elastic  phrase  of  ''more  or  less," 
as  is  so  commonly  done ;  and,  generally  speaking,  a  deficiency 
in  number  of  acres  gives  the  buyer  no  remedy  against  the 
seller  for  a  return  of  any  part  of  the  purchase  money,    unless. 


HOW    FAR    THE    FARM    EXTENDS.  13 

perhaps,  when  it  was  clearly  bought  at  the  rate  of  so  much  per 
acre.  In  one  case  the  bargain  was  for  a  well-defined  tract, 
followed  by  the  words  "containing  600  acres."  In  fact,  it  con- 
tained only  421  acres,  but  the  buyer  had'no  redress  for  the 
difference.  So  much  more  important  are  the  known  monu- 
ments and  boundaries  than  the  number  of  acres  stated,  that, 
even  if  the  vendor  fraudulently  and  intentionally  overstates  the 
quantity,  in  order  to  deceive  the  purchaser,  the  latter  has  no 
redress,  if  so  be  the  other  truly  pointed  out  the  boundaries  in 
making  the  trade ;  whereas,  a  fraudulent  statement  of  the 
boundaries  would  release  the  purchaser  from  the  sale,  although 
the  farm  contained  as  many,  or  even  more  acres,  than  the 
parties  called  it  in  making  the  bargain. 

And,  while  speaking  of  fraudulent  statements,  perhaps  I 
ought  to  warn  you  that  fraudulent  misrepresentations  by  the 
seller  of  a  farm,  as  to  how  much  hay  or  wood  it  will  cut,  how 
much  stock  it  will  keei>,  how  much  it  had  cost,  or  how  much 
somebody  else  had  offered  for  it,  though  made  with  intention 
to  deceive  you  into  a  foolish  trade,  are  not  in  law  sufficient  to 
excuse  you  from  the  purchase,  or  give  you  any  redress,  when  you 
find  out  the  deception.  Such  and  other  similar  statements  are 
considered  in  law  merely  as  "dealer's  talk,"  which,  though 
not  to  be  commended  in  the  code  of  morals,  the  law  takes 
little  or  no  notice  of.  On  the  other  hand,  if  he  should  falsely 
state  that  the  farm  had  cut  fifty  tons  of  hay,  when  he  knew  it 
had  not,  his  deception  would  make  him  liable  ;  and  the  line  is 
so  thin  between  actionable  fraud  and  tlie  contrary,  that  experi- 
ments in  that  direction  are  rather  dangerous.  It  is  not  whole- 
some to  always  dwell  in  the  twilight. 

If  a  boundary  line  runs  to  a  tree,  rock,  stump,  or  other 
similar  object,  it  ordinarily  goes  to  the  center  of  the  object;  rf 
it  runs  by  a  wall  or  fence,  it  passes  along  the  middle  of  it,  and 
not  by  the  side,  which,  in  a  "  Virginia  fence,"  or  a  ditch  six 
feet  wide,  might  be  of  some  consequence.  Such  a  fence,  six 
or  seven  feet  wide,  is  a  lawful  fence. 

So  if  a  farm  bounds  by  or  on  a  brook,  river,  stream,  etc.,  it 
usually  extends  to  the  middle  of  the  current  ;  not   always  to 


14  FARM    LAW. 

the  middle  of  the  ivater,  but  geiiei-ally  to  the  thread  of  the 
stream,— ftc?  filtim  aqufc.  If  there  be  any  islands  between 
that  center  line  and  the  bank,  they  belong  to  the  owner  of  the 
main  bank.  If  an  island  forms  in  the  bed  of  an  unnavigable 
river,  directly  in  the  channel,  so  as  to  lie  [)artly  on  each  side 
of  the  original  thread  of  the  mver,  such  island  will  be  divided 
between  the  opposite  proprietors,  exactly  upon  the  line  of  the 
former  thread  of  the  stream  at  that  place. 

Whereas,  if  the  course  of  such  a  river  changes,  and  cuts  otf 
a  point  of  land  on  one  side,  thus  making  an  island,  such 
island  still  belongs  to  the  original  proprietor  ;  and  in  such  case, 
if  the  old  bed  of  the  river,  being  gradually  deserted  by  the 
current,  (ills  up,  and  new  land  is  formed,  such  newly  formed 
land  is  to  be  divided  between  the  opposite  owners,  as  al)0ve 
staled,  notwithstanding  the  island  formed  by  the  "  cut-off"  is 
not  divided.  In  like  manner,  if  a  deed  is  bounded  on  a  mill- 
pond,  reservoir-pond,  or  any  artificial  pond  through  which  a 
perceptible  current  makes  its  way,  the  farmer  ordinarily  owns 
to  the  centre  of  the  current ;  on  the  other  hand,  if  it  be  a 
large,  natural  pond  or  lake,  the  line  stops  at  the  low-water 
mark,  on  the  shore,  and  does  not  extend  into  the  pond  ;  the 
public  having  rights  in  such  large  bodies  of  water  as  are  use- 
ful for  navigation,  boating,  sailing,  and   the  like. 

As  to  farms  bounding  on  the  seashore,  some  different  pro- 
visions exist  in  some  states. 

That  strip  of  land  between  high  and  low  water  mark, 
generally  termed  "  the  flats,"  is  a  frequent  subject  of  conten- 
tion ;  and  the  question  is  often  made  to  whom  it  belongs, — 
whether  to  the  owner  of  the  upland,  or  to  the  public.  In 
many  states  the  private  ownership  in  such  farms  extends  only 
to  "  highwater  mark,"  and  the  public  have  rights  in  the  belt 
between  high  and  low  water  mark,  so  that  if  sea-weed,  or 
other  such  thing  be  tiirown  up  there  by  the  tide,  any  one  may 
take  possession  of  it,  and  he  who  first  gathers  it  has  an 
absolute  right  to  it.  By  force  of  a  very  early  law  in  Massa- 
chusetts, and  some  other  sea-coast  states,  if  a  deed  describes 
the  farm  as  bounding  "  by  the  sea,"   '•  by   the   salt    water," 


HOW    FAR    THK    FARM    EXTENDS. 


15 


"  bay,  harbor,  cove,  creek,  stream,  river,  or  tide-water/'  it 
generally  includes  the  whole  flats  down  to  low-water  mark  (if 
not  over  a  hundred  rods),  including  the  exclusive  right  to 
gather  the  sea-weed,  or  other  such  things  washed  up  thereon 
by  the  tide.  And  no  custom  among  the  people  in  the  neigh- 
borhood to  collect  sea-weed  in  such  places,  is  of  any  validity 
in  law.  On  the  other  hand,  if  the  deed  bounds  "  by  the 
shore,"  "  beach,  strand,  flats,  marsh,  or  cliff,"  it  extends  only 
to  high-water  mark,  and  does  not  give  any  right  to  the  flats. 

While  yet  again  (such  are  the  niceties  of  the  law),  if  the 
phrase  of  the  deed  is  "  to  the  beach  or  sea,"  "  to  the  sea-shore." 
'"  to  the  sea  or  flats,"  the  grantee  owns  down  to  low-water 
mark,  flats  and  all.  Tn  view  of  such  nice  and  subtle  distinc- 
tions (though  founded  on  better  reasons  than  are  apparent)^ 
one  is  tempted  to  exclaim  with  the  Earl  of  Warwick,  in 
Shakespeare's  Henry  YI.: — 

"Between  two  hawks,  which  flies  the  higher  pitch; 
Between  two  dogs,  wliich  hath  tlie  deeper  mouth; 
Between  two  horses,  which  doth  bear  him  best; 
Between  two  girls,  which  hath  the  merriest  eye ; 
I  have,  perhaps,  some  shallow  spirit  of  judgment, — 
But  in  these  nice  sharp  quillets  of  the  law, 
Good  faith,  I  am  no  wiser  than  a  daw. " 


CHAPTER  HI. 

WHAT    A    DEED    OF    A    FARM    INCLUDES. 


Of  course  every  one  knows  it  conveys  all  the  fences  stand- 
ing on  the  farm  ;  but  all  might  not  think  it  also  included  the 
fencing-stuff,  posts,  rails,  etc.,  which  had  once  been  used  in 
the  fence,  but  had  been  taken  down  and  piled  up  for  future 
use  again  in  the  same  place.  But  new  fencing  material,  just 
bought,  and  never  attached  to  the  soil,  would  not  pass.     So 


16  FARM    LAW. 

piles  of  liop-polcs  stored  away,  if  once  used  on  the  land  and 
intended  to  be  again  so  used,  have  been  considered  a  part  of  it; 
but  loose  boards  or  scaffold-poles  merely  laid  across  the  beams 
of  the  barn,  and  never  fastened  to  it.  would  not  be,  and  the 
seller  ot  the  farm  might  take  them  away.  Standing  trees,  of 
course,  also  pass  as  part  of  the  land ;  so  do  trees  blown  or  cut 
down,  and  still  left  in  the  woods  where  they  fell,  but  not  if 
cut,  and  corded  up  for  sale  ;  the  wood  has  then  become 
personal  property. 

If  there  be  any  manure  in  the  barnyard,  or  in  the  compost 
heap  on  the  field,  ready  for  immediate  use,  the  buyer  ordina- 
rily, in  the  absence  of  any  contrary  agreement,  takes  thai  also 
as  belonging  to  the  farm,  though  it  might  not  be  so,  if  the 
owner  had  previously  sold  it  to  some  other  party,  and  had 
collected  it  together  in  a  heap  by  itself,  for  such  an  act  might 
be  a  technical  severance  from  the  soil,  and  so  convert  real 
into  personal  estate  ;  and  even  a  lessee  of  a  farm  could  not 
take  away  the  manure  made  on  the  place  while  he  was  in 
occupation.  Growing  crops  also  pass  by  the  deed  of  a  farm, 
unless  they  are  expressly  reserved ;  and,  when  it  is  not 
intended  to  convey  those,  it  should  be  so  stated  in  the  deed 
itself;  a  mere  oral  agreement  to  that  efiect  would  not  be,  in 
most  states,  valid  in  law.  Another  mode  is  to  stipulate  that 
possession  is  not  to  be  given  until  some  future  day,  in  which 
case  the  crops  or  manure  may  be  removed  before  that  time. 

As  to  the  buildings  on  the  farm,  though  generally  mentioned 
in  the  deed,  it  is  not  absolutely  necessary  they  should  be.  A 
deed  of  land  ordinarily  carries  all  the  buildings  on  it  belong- 
ing to  the  grantor,  whether  mentioned  or  not ;  and  this  rule 
includes  the  lumber  and  timber  of  any  old  building  which  has 
been  taken  dov/n,  or  blown  down,  and  been  packed  away  for 
future  use  on  the  farm. 

But  if  there  be  any  temporary  buildings  on  the  farm  built 
by  some  third  person,  with  the  farmer's  consent  that  they 
should  belong  to  the  builder,  as  between  the  parties  these  are 
personal  property  ;  and  some  think  the  deed  would  not 
convey    these,   since    such    l)uildings    are    personal   property, 


WHAT    A    DEED    OF    A    FARM    INCLUDES.  17 

and  do  not  really  belong  to  the  land-owner  to  convey, 
if  that  be  so,  the  real  owner  thereof  might  move  them 
off,  although  the  purchaser  of  the  farm  supposed  he  was 
buying  and  paying  for  all  the  buildings  on  it.  His  only 
remedy  in  such  case  would  be  against  the  party  selling  the 
premises.  But  some  courts  decide  that  the  honest  buyer  of 
the  farm  would  take  all  the  buildings  on  it,  and  if  they  did 
not  justly  belong  to  the  seller,  the  real  owner  must  sue  him 
for  wrongfully  selling  his  property.  As  part  of  the  buildings 
conveyed,  of  course  the  window-blinds  are  included,  even  if 
they  be  at  the  time  taken  off,  and  carried  to  a  painter's  shop 
to  be  painted  :  it  would  be  otherwise  if  they  had  been  newly 
purchased  and  brought  into  the  house,  but  not  yet  attached  or 
fitted  to  it.  Lightning-rods  also  go  with  the  house,  if  a 
farmer  is  foolish  enough  to  be  overcome  by  those  smooth- 
tongued lightning-rod  agents. 

A  brick  furnace  in  the  cellar  is  considered  a  part  of  the 
house;  some  think  otherwise  as  to  portable  furnaces,  but  this 
may  not  be  everywhere  so.  An  ordinary  stove,  with  a  loose 
pipe  I'unning  into  the  chimney,  is  not,  while  a  range  or  grate 
set  in  brick-work  is.  Mantel-pieces  so  attached  to  the  chim. 
ney  as  not  to  be  removed  without  marring  the  plastering,  go 
with  the  house  ;  but,  if  merely  resting  on  brackets,  they  may 
be  taken  away  by  the  former  owner  without  legal  liability  I 
am  inclined  to  believe  that  a  deed  of  a  house  does  not  include 
the  gas  fixtures  therein,  and  it  is  generally  understood,  that, 
if  a  lessee  puts  in  his  own  gas-fixtures,  he  may  remove  them 
when  his  lease  expires.  Tiie  pumps,  sinks,  etc.,  fastened  to 
the  building,  are  a  part  of  it  in  law,  and  so  are  the  water- 
pipes  connected  therewith,  bringing  water  from  a  distant 
spring.  A  wooden  cistern  in  the  cellar,  standing  on  blocks  of 
wood,  probably  falls  within  the  same  rule.  If  the  farmer  has 
iron  kettles  set  in  brick  work,  near  his  barn,  for  cooking  food 
for  his  stock,  or  other  similar  uses,  the  deed  of  his  farm 
covers  them  also,  as  likewise  a  bell  attached  to  his  barn,  to 
call  the  men  to  dinner.  A  cider-mill  goes  with  the  apple- 
orchard,  and  not  with  the  year's  crop  of  apples.     If  he  has  a 


18  FARM    LAW. 

cattle-l)arn  on  the  premises,  the  tie-up  planks,  stanchion- 
timbers,  tie-chains,  and  hinge-hooks  used  for  fastening  the 
animals  in  their  stalls,  belong  to  the  barn,  and  not  to  the  cattle. 
If  the  farmer  indidges  in  ornamental  statues,  vases,  etc., 
permanently  erected,  and  resting  on  the  ground  by  their  own 
weight  merely,  and  sells  his  estate  without  reservation,  these 
things  go  with  the  land.  But  even  this  might  not  be  so,  if  the 
article  had  just  arrived,  and  never  been  placed  or  fitted  to  its 
position  on  the  lawn. 

The  same  rules  apply  to  mortgages  of  a  farm,  as  to  absolute 
deeds  of  it;  with  one  additional  important  consideration,  viz., 
any  additions  or  permanent  improvements  upon  the  land  after 
the  mortgage  is  given,  belong  to  the  land,  and  go  with  it,  so 
that  if  the  farmer,  after  mortgaging  his  farm,  erects  a  new 
barn,  or  other  out-buildings,  but  fails  to  pay  the  mortgage 
debt,  and  the  mortgagee  forecloses,  the  owner  will  lose  the 
whole,  new  and  old,  though  it  be  twice  the  value  of  the  whole 
mortgage  debt. 


CHAPTER  IV. 

HIRING      II  E  L  r  . 


After  taking  possession  of  the  farm,  one  of  the  first,  and 
often  one  of  the  most  trying  duties  of  the  farmer  is  to  hire  his 
help.  Every  employer  of  lalior  knows  full  well,  that  if  a  man 
is  hired  without  any  special  bargain  as  to  the  price,  he  is 
entitled  to  the  current  rate  of  wages  for  such  labor,  and  no 
more;  but  every  laborer  may  not  be  aware  that  if  he  engages 
to  work  "  for  a  year,"   but  leaves  without  good  cause  at  the 


HIRING    HELP.  19 

end  of  eleven  months,  he  is  not,  in  most  states,  legally  entitled 
to  any  compensation  for  what  he  has  done,  but  forfeits  the 
whole:  and  this  is  so,  whetiier  he  has  agreed  to  stay  for  the 
entire  year  at  one  ronnd  snm,  or  for  a  year  at  the  rate  of 
twenty  dollars  a  month;  although,  if  the  farmer  had  paid  for 
each  month's  work  as  it  came  dne,  he  could  not  probably 
recover  it  back,  even* if  the  laborer  afterward  wrongfnlly  left 
him  before  his  time  was  out.  And,  if  he  has  given  a  note  for 
the  amount  already  earned,  he  must  pay  the  note,  notwith- 
standing the  subsequent  failure  of  the  other  party  to  work  out 
his  full  time.  But  if  nothing  has  been  paid,  and  no  note 
given,  the  laborer  would  not  only  forfeit  his  wages,  but  also 
would  be  liable  to  pay  the  employer  for  any  damage  done  him 
by  leaving  him  without  help  at  a  critical  time  in  the  year  ; 
therefore,  if  he  has  agreed  to  work  a  year  for  twenty  dollars 
a  month,  and  quits  just  before  haying  because  he  can  get  forty 
dollars  at  mowing  for  some  one  else,  and  the  farmer  has  to 
pay  that  price  to  get  another  man  to  supply  his  place,  he  can 
recover  of  the  laborer  the  extra  twenty  dollars  a  month  for 
the  balance  of  the  unexpired  engagement,  as  damages  caused 
him  by  such  breaking  of  the  contract;  and  the  laborer  could 
not  set  off  against  the  claim  of  the  employer  the  value  of  the 
work  he  had  really  done,  and  not  been  paid  for.  And  this  is 
so,  whatever  S[)ecific  thing  you  hire  a  man  to  do.  If  he 
engages  to  build  you  a  barn  for  five  hundred  dollars,  to  lay  up 
a  hundred  feet  of  stone  wall  for  a  dollar  a  foot,  or  dig  a  well 
twenty  feet  deep  for  twenty-five  dollars,  and  voluntarily  quits 
without  good  excuse  when  the  job  is  half  done,  you  are  not 
obliged  to  pay  a  single  cent  for  what  he  did  do  ;  although,  if  he 
had  substantially  completed  it  in  good  faith,  he  would  not  lose 
all  his  labor  because,  in  some  minute  particulars,  he  had  not 
finished  it  exactly  according  to  the  precise  terms  of  the 
contract. 

It  a  farm  laborer  so  conducts  himself  as  to  justify  his 
discharge  before  his  time  has  expired,  it  may  be  he  would  not 
forfeit  all  his  wages  (as  when  he  voluntarily  quits  without 
cause),  but  might  recover  whatever  his  services  were  really 
worth  to  the  farmer,  not  exceeding  the  contract  price. 


20  FARM    LAW. 

Oil  the  other  hand,  if  the  laborer  has  good  cause  for  leaving, 
he  may  do  so,  and  compel  the  employer  t<>  pay  for  the  time  he 
actually  did  work.  And  among  the  well-known  excuses  for 
leaving  before  the  original  bargain  contemplated,  are  sickness 
of  the  hired  man,  or  his  physical  inability  to  labor,  or  the 
prevalence  of  some  dangerous  epidemic  in  the  family  or  in  the 
vicinity,  which  might  render  it  hazai'dous  for  the  man  to 
remain;  such  as  cholera,  small-pox,  and  the  like.  Any 
improper  treatment  by  the  employer,  as  scarcity  of  suitable 
food,  is  also  deemed  sufficient  excuse  for  seeking  other 
quarters. 

And  even  though  the  laborer  so  misbehaves  himself  that  he 
is  arrested  and  imprisoned  for  some  crime,  and  so  is  busy 
picking  oakum  for  the  county  in  the  house  of  correction,  this 
is  considered  a  legal  excuse  for  not  attending  to  his  farm 
duties,  and  he  can  make  the  farmer  pay  for  what  he  did  do 
before  he  involuntarily  went  into  the  public  service. 

It  has  been  thought  that  merely  harsh  language  by  the 
employer  to  his  employee  would  not  justify  him  in  leaving 
before  his  stipulated  time  was  out.  In  one  instance  the 
farmer  asked  his  hired  man  to  water  and  feed  the  cattle  one 
Sunday  morning.  The  man  said  he  wouldn't  do  it :  the 
employer  told  him  to  "  go  to  hell,  but  to  mind  and  work  his 
time  out  first."  Instead  of  following  the  directions,  the 
laborer  went  to  a  lawyer's  office,  and  sued  for  his  wages  up 
to  that  time,  but  was  held  not  entitled  to  any  thing.  Had 
the  master  required  him  to  do  any  unnecessary  or  unlawful 
work  on  a  Sunday,  it  would  probably  have  been  a  good  excuse 
for  his  leaving  ;  but  necessary  farm-work,  such  as  care  of 
live  animals,  may  undoubtedly  be  required  on  Sunday.  And 
any  work  done  on  Sundays,  ordinarily  comes  under  the 
regular  contract,  and  not  as  extra  work. 

Difficulty  with  another  laborer  is  not  a  good  excuse  for 
leaving  without  permission;  but  it  is  always  a  question  for  the 
jury  to  decide  whether  the  man  had  good  cause  for  leaving, 
and  their  sympathies  being  with  the  person  employed,  they 
usually  think  the  lal^orer  is  worthy  of  his  hire.     The  cheaper 


HIRING    HELP.  21 

way  generally  in  such  cases  is,  if  the  amount  is  not  large,  to 
pay  the  man,  let  him  go,  and  never  hire  him  again. 

What  we  have  before  stated  about  a  forfeiture  of  wages,  is 
founded  upon  the  doctrine  that  the  laborer  has  made  an  entire 
contract  for  a  time  not  exceeding  one  year,  and  that  he  must 
faithfully  fulfil  it,  or  he  is  entitled  to  no  pay  :  therefore,  if  for 
any  reason  this  entire. contract  is  not  valid  and  binding  on  the 
laborer,  he  may  disregard  it  entirely,  and  quit  when  he  likes, 
and  still  recover  for  all  the  time  he  did  work.  For  this  rea- 
son, if  the  l)argain  is  to  work  for  more  than  one  year,  or  even 
for  just  a  year,  but  to  commence  at  some  future  day,  as  a  week 
after  making  the  bargain,  and  the  contract  is  not  written 
down  and  signed  (which  nobody  ever  thinks  of  doing;,  it  is 
not  binding  on  the  laborer,  and  he  can  break  it  from  a  mere 
whim,  and  still  make  the  farmer  pay.  In  like  manner,  if  the 
laborer  is  under  twenty-one,  he  is  not  bound  by  his  bargain, 
but  may  desert  when  he  pleases,  and  recover  "  back  pay." 
And  this  is  so,  although  the  young  man  appears  to  be  of  age 
or  is  married  and  has  a  family,  or  even  though  he  falsely 
stated  he  was  over  age,  and  able  and  willing  to  make  as  good 
a  bargain  as  if  half  a  century  old. 

Laborers  sometimes  make  a  contract  that  if  either  party  is 
dissatisfied,  the  contract  may  be  terminated.  Under  such 
circumstances,  he  may  leave  when  he  pleases,  whether  he  had 
any  good  reason  to  be  dissatisfied  or  not. 

But  even  if  you  have  a  nominal  remedy  against  a  laborer 
who  has  left  you  unjustifiably  in  the  midst  of  his  contiact, 
this  so  often  proves  practically  worthless,  that  the  law  also 
gives  you  a  right  of  redress  against  the  person  who  has  enticed 
him  away  with  the  offer  of  better  wages,  or  otherwise.  Of 
course,  one  farmer  has  a  right  to  offer  inducements  to  a 
laborer  to  leave  his  present  employer,  when  his  time  is  out,  or 
it  he  is  only  employed  from  day  to  day,  and  under  no  legal 
obligation  to  remain  longer,  but  enticing  him  away  during  his 
contract  is  quite  another  matter. 

The  law  does  not  allow  one  man  thus  to  interfere  with 
another  man's  business  without  being  liable  to  pay  for  all  the 


22  FARM    LAW. 

inconvenience  and  loss  he  may  thereby  cause  to  the  person 
whose  men  are  thus  induced  to  breaiv  their  contract  with  their 
former  employer. 

It  is  for  this  reason  that  comlnnations  among  workmen  for 
a  strike,  and  to  induce  fellow-workmen,  l)y  intimidation  or 
otherwise,  to  forsake  their  employers,  are  clearly  illegal,  and 
render  the  parties  involved  liable  both  civilly  and  criminally. 
Such  associations  are  more  common  among  operatives  than 
farm  laborers;  but  probably  the  same  rules  apply  to  both. 

A  few  years  since,  in  Nebraska,  a  number  of  laborers  con- 
spired together  to  quit  work  simultaneously,  and  return  the 
articles  they  were  at  work  upon,  in  an  unfinished  and  worth- 
less condition.  They  did  so,  but  they  were  obliged  to  pay 
several  hundred  dollars  damages  to  their  employer. 


CHAPTER  V. 

RIGHTS    IN    THE    ROAD. 


If  a  farm  deed  is  bounded  by,  on,  or  upon  a  road,  it  usually 
extends  to  the  middle  of  the  roadway.  There  are  a  few 
exceptional  cases;  but  ordinarily  the  farmer  owns  the  soil  of 
half  the  road,  and  may  use  the  grass,  trees,  stones,  gravel, 
sand,  or  anything  of  value  to  him,  either  on  the  land,  or 
beneath  the  surface,  subject  only  to  the  superior  rights  of  the 
public  to  travel  over  the  road,  and  that  of  the  highway  sur- 
veyor, or  other  similar  officer,  to  use  such  materials  for  the 
repair  of  the  road;  and  these  materials  he  may  cart  away, 
and   use   elsewhere  on  the  road,  but  he   has  no  right  to  use 


EIGHTS    IN    THE    ROAD. 


23 


them  for  his  own  private  pui-poses.     No  other  man  lias  a  right 
to  feed   his  cattle  there,  or  cut  the  grass  or  trees ;  much  less 
deposit  his  wood,  old  carts,  wagons,  or  other  things  thereon  ; 
and  after  notice  to  the  owner,  the  farmer  may   remove  them 
to  some  suitable  place,  and  if  th6y  are  lost  or  injured  it  is  not 
his  fault.     The  owner  of  a  drove  of  cattle  which  stops  to  feed 
in  front  of  your  land,  or  of  a  drove  of  pigs  which  root  up  the 
soil,  is  responsible  to  you  at   law  as  much  as  if  they  did  the 
same  things  inside  the  fence.     No  person's   children  have  a 
legal  right  to  pick  up  the  apples  under  your  trees,  although 
the  same  stand  wholly  outside  of  the  fence.     No  private  per- 
son   has  a  right   to   cut  or   lop  off  the  limbs  of  your  trees  in 
order  to  move  his  old  barn  or  other  buildings  along  the  high- 
way ;  and  even  if  the   owner   of  the    building  has  a    license 
from    the    proper  authorities    to    move  the  same  through  the 
streets,  this   does    not  exempt   him  from   liability   to  private 
sufferers.     And  no  traveller  can  hitch  his  horse  to  your  trees 
in  the  sidewalk,  without  being  liable  if  he  gnaws  the  bark  or 
otiierwise  injures  them  ;  and    you  may  untie  the   horse,  and 
remove  him  to  some  safe  place.     If  your  well  stands  partly  on 
your  land,  and  partly  outside  the  fence,  no  neighbor  can  use 
it,   except    hy   your    permission.     Nay,    more:   no  man  has  a 
right    to  stand  in   front  of  your   land,  and  whittle   or  deface 
your    fence,  throw    stones    at   your   dog,  or  insult   you    with 
abusive  language,  without  being  liable  to  you  for  trespassing 
on  your  land  ;  he  has  a  right  to  piSS  and  repass  in  an  orderly 
and  becoming  manner, — a  right  to   use  the  road,  liut   not  to 
abuse  it. 

One  judge  thought  that  if  a  strolling  musician  stops  in  front 
of  the  house,  and  plays  a  tune,  or  sings  an  obscene  song  unde*' 
the  window,  he  would  be  liable  as  a  trespasser  on  the  road. 
It  ought  to  be  so,  anyway.  In  one  case,  a  man  stopped  in  the 
highway,  in  front  of  a  house,  and  used  vulgar,  obscene  and 
profane  language  in  the  hearing  of  the  inmates  of  the  house, 
and  it  was  decided  that  the  man  of  the  house  had  a  right  to 
put  a  stop  to  such  annoyance,  even  l)y  the  use  of  force. 

Perhaps  it  may  be  well  to  state   here,  that,  if  the   highway 


24  FARM    LAW. 

becomes  suddenly  impassable  by  heavy  snows  or  deep  gullies, 
a  traveller  may  turn  aside  into  your  adjoining  land,  without 
being  liable  as  a  trespasser,  if  he  does  no  unnecessary  injury. 
But,  notwithstanding  the  farmer  owns  the  soil  of  the  road, 
even  he  cannot  use  it  for  any  purpose  which  interferes  with 
the  use  of  it  by  the  public  for  travel.  He  cannot  put  his  pig- 
pen, wagons,  wood,  or  other  things  there,  if  the  highway 
surveyo)-  orders  them  away  as  obstructing  public  travel.  If  he 
leaves  such  things  outside  his  fence,  and  within  the  limits  of 
the  highway  as  actually  laid  out  (even  though  some  distance 
from  the  travelled  path),  and  a  traveller  runs  into  them  in 
the  night,  and  is  injured,  the  owner  is  not  only  liable  to  him 
for  private  damages,  but  may  also  be  indicted  and  fined  for 
obstructing  a  public  way.  And,  if  he  have  a  fence  or  wall 
along  the  highway,  he  must  place  it  all  on  his  own  land,  and 
not  half  on  the  road,  as  in  case  of  division  fences  between 
neighbors.  And  such  front  fence  must  end  on  each  man's 
own  line.  One  man  has  not  a  right  to  put  the  terminal  post 
of  his  from  fence  partly  on  his  neighbor's  land,  the  same 
being  no  part  of  a  division  fence.  But,  as  he  owns  the  soil,  if 
the  road  is  discontinued,  or  located  elsewhere,  the  land  reverts 
to  him,  and  he  may  enclose  it  to  the  center,  and  use  it  as  a 
part  of  his  farm. 


CHAPTER  VI. 

WAYS    OYER    THE    FARM. 


Others  may  acquire  a  right  of  way  over  your  farm,  in  either 
one  of  three  modes  : 

1  By  purchase  or  grant  from  you. 

2  By  long-continued  use,  or  prescription. 

3  By  actual  necessity. 

As  to  the  first  method,   to  gain  a  permanent  right  by  pur- 
chase or  grant,  it  must  have  been  by  a  regular  and  complete 


WAYS    OVER    THE    FARM.  25 

deed,  executed  in  the  same  way  as  a  deed  of  the  land  itself. 
If  the  bargain  was  only  oral,  or  even  if  it  was  in  some  simple 
written  paper,  but  not  in  a  formal  deed  under  seal,  it  would, 
even  though  fully  paid  for,  be  in  law  revocable, — a  mere  li- 
cense as  it  is  called, — and  might  be  terminated,  at  the  mere 
wish  of  the  land-owner,  by  a  notice  to  the  other  party  to  use  it 
110  longer.  Being  a  kind  of  interest  in  land,  the  strict  law 
requires  it  to  be  conveyed  by  a  deed. 

2  The  second  mode,  by  prescription,  requires  length  of  time, 
generally  twenty  years,  but  in  some  states,  only  fifteen  ;  and 
the  way  must  have  been  used  continuously,  peaceably,  and 
under  a  claim  of  right  to  do  so,  and  not  by  your  permission  or 
consent.  If  it  was  only  very  rarely  used,  if  it  was  not  peace- 
ably used,  but  against  your  protest,  or  if  used  by  your  tacit 
consent,  the  use  would  not  ripen  into  a  legal  right,  however 
long  continued.  And,  if  used  under  all  those  conditions,  it 
must  have  been  in  some  regular  and  uniform  place.  No  man 
can  gain  a  right  by  such  means  to  wander  over  your  farm  just 
where  he  has  a  mind  to,  or  where  his  convenience  suits  him. 
That  would  be  an  intolerable  burden  to  the  farmer. 

To  gain  this  right  by  twenty  years'  use,  it  is  not  necessary 
that  any  one  owner  should  have  travelled  it  twenty  years.  If 
successive  owners  have  unitedly  used  it  for  that  period,  it 
would  be  sufficient,  so  far  as  length  of  time  is  concerned.  And 
if  this  prescriptive  right  of  way  was  gained  only  by  using  it 
for  some  particular  purpose,  as  for  carting  wood^from  a  wood- 
lot  beyond,  that  would  not  authorize  the  person  to  continue  to 
use  it  for  all  purposes,  after  the  wood  had  been  all  cut  off,  and 
the  lot  covered  over  with  buildings. 

8  The  third  mode,  by  necessity,  arises  when  you  sell  a  man 
a  back  lot,  with  no  means  for  him  to  get  to  any  highway  except 
over  your  remaining  land.  The  law  gives  him  a  right  to  cross 
your  land  to  and  fro,  otherwise,  his  land  would  be  useless.  At 
present  lie  can't  reach  it  by  balloon  to  any  practicable  purpose, 
and  therefore  he  must  cross  your  land.  So,  if  you  sell  a  man 
all  your  front  land,  retaining  the  back  part,  and  have  no  way 


26  FARM   LAW. 

out  except  over  the  part  sold,  you  retain  a  riglit  to  cross  the 
lot  sold,  though  your  deed  in  such  case  says  nothing  about  it; 
and  this  is  so,  even  if  in  your  deed  you  warrant  the  land  to  be 
free  and  clear  from  all  incumbrances.  It  is  a  familiar  maxim 
that  "necessity  knows  no  law." 

But  right  of  ways  by  necessity,  continue  only  so  long  as  the 
necessity  itself  continues  ;  and  if  a  highway  is  afterward  laid 
out,  touching  the  back  land  on  the  other  side,  or  if  the  owner 
of  such  back  lot  afterward  buys  a  lot  adjoining  it,  and  between 
it  and  a  highway,  he  can  no  longer  cross  over  your  land  as 
before,  but  must  go  out  the  other  way.  And  so  long  as  he 
does  have  such  a  right,  he  must  go  in  such  a  place  as  you  des- 
ignate, if  it  be  a  reasonable  place.  If  you  mark  out  a  road  or 
a  way  along  the  fence,  or  on  the  poorer  ground,  he  should  con- 
fine himself  to  that.  If  you  neglect  to  do  so,  probably  he  may 
then  locate  his  own  way,  but  must  do  so  in  a  "reasonable 
manner,"  and  where  it  will  do  you  no  unnecessary  damage. 
He  has  not  a  right  always  to  take  the  "shortest  cut"  across 
your  land,  whatever  it  may  be.  Neither  has  he  the  right  to 
keep  changing  his  route,  and  so  cut  your  land  all  up  with  his 
wheel-ruts.  And,  if  the  way  becomes  rairy  or  out  of  repair,  he 
must  keep  it  in  good  condition  if  he  wants  to  use  it.  Your 
duty  is  done  when  you  allow  him  to  cross  :  you  are  not  obliged 
to  smooth  his  pathway  for  him,  and  rake  out  the  sticks  and 
stones.  But  if  you  actually  obstruct  his  usual  road,  and  per- 
haps if  it  becomes  suddenly  impassable  b}^  natural  causes,  he 
would  have  a  right  to  deviate  to  one  side  until  he  has  oppor- 
tunity to  remove  the  obstructions  or  make  repairs. 

All  such  rights  of  way  are  apt  to  be  nuisances  to  the  farmer, 
and  not  unfrequently  lead  to  litigation. 

It  is  important  to  know,  that,  in  whatever  mode  a  right  of 
way  is  acquired  over  your  land,  you  have  ordinarily  a  right,  in 
the  absence  of  any  stipulation  to  the  contrary,  to  erect  suitable 
gates  or  bars  at  the  entrances  thereto  from  the  highway ;  and 
if  the  other  party  leave  them  open,  and  cattle  get  in,  or  yours 
get  out,  he  is  liable  to  you  for  the  damage  which  ensues. 


RAILROADS   THROUGH   FARMS.  27 

CHAPTER  VII. 

KAILKOADS    THROUGH   TAEMS. 


Many  farms,  now-a-days,  especially  in  the  valleys,  have  one 
or  more  railroads  crossing  them;  and  as  such  railroads  are  not 
generally  acceptable  to  the  farmer,  it  becomes  interesting  to 
know  the  legal  liabilities  and  rights  of  the  company  and  the 
land  owner. 

In  the  first  place,  railroad  companies  do  not  generally 
acquire  the  fee  in  any  land  they  take  by  law  for  their  road-bed, 
but  only  an  easement,  or  right  to  maintain  their  road  there, 
with  all  necessary  incidental  rights  thereto.  If  the  farmer 
gives  the  company  a  deed  of  the  land,  of  course  they  have  the 
same  absolute  ownership  any  other  purchaser  would  have.  And 
in  some  states  this  may  be  so  when  the  land  is  seized  and  con- 
demned by  the  railroad  company,  contrary  to  the  will  of  the 
owner;  but  usually  the  fee  of  the  land  remains  in  the  person 
from  whom  it  was  taken.  The  exclusive  rights  of  property  in 
the  land,  and  in  the  trees  and  herbage  upon  its  surface,  and 
the  minerals  below  it,  belongs  to  him,  and  the  company  have 
only  a  right  of  way  over  the  surface. 

If  any  stranger,  therefore,  should  take  and  carry  away  any 
such  things  from  the  strip  of  land  taken  for  the  road,  he  would 
be  liable  to  the  adjacent  land  owner  for  so  doing.  But  owing 
to  the  peculiar  character  of  railways,  and  the  necessity  for  an 
exclusive  use  and  occupation  of  the  road  by  the  company,  the 
land  owner  might  not  have,  as  against  the  company,  a  right  to 
enter  ad  libitum,  and  cut  and  carry  away  what  was  growing 
thereon,  or  remove  the  soil,  turf,  etc. 

And  of  course  the  company  have  a  right  to  cut  down,  and 
remove,  any  trees,  buildings,  or  other  objects  within  their 
authorized  location,  which  may  at  any  time  interfere  with 
their  use  and  operation  of  the  road. 


28  FARM   LAW. 

It  may  seem  singular  that  a  railroad  company,  a  corporation 
organized  only  for  private  profit,  should  have  a  legal  right  to 
take  the  best  of  a  man's  land  without  his  consent,  and  subject 
him  to  the  annoyances  necessarily  incident  to  such  a  use  of 
his  property;  but  it  is  quite  universally  established  that  the 
legislature  have  a  right  to  grant  railroad  companies  such 
powers,  mainly  because,  though  the  direct  object  of  the  stock- 
holders in  building  a  railroad  is  pecuniary  profit,  yet  being 
built,  it  becomes  a  great  public  highway — artificial  highway — 
on  which  every  one  has  a  right  to  travel,  upon  complying  with 
the  terms  and  conditions  sanctioned  by  the  law.  Being,  how- 
ever, a  power  contrary  to  common  right,  it  is  to  be  strictly 
construed,  and  not  extended  beyond  the  necessity  of  the  case  ; 
and  railroad  companies  do  not  have  a  right  to  seize  and  take 
all  the  land  they  may  happen  to  want,  but  only  what  they  act- 
ually need  for  operating  their  road.  They  would  have  no  right 
to  seize  and  take  possession  of  land  wholly  outside  of  their 
location,  merely  for  the  purpose  of  speculation  and  profit. 

In  some  states,  also,  the  land  lawfully  taken  must  be  actually 
paid  for,  before  the  company  has  any  right  to  take  possession; 
while  in  others,  they  have  a  right  of  immediate  possession, 
leaving  the  damages  to  be  paid  for  afterward,  as  the  parties 
may  agree,  or  a  legal  tribunal  determine. 

The  ultimate  fee  of  the  road-bed  therefore,  generally  remain- 
ing in  the  former  owner,  if  the  road  is  discontinued,  or  the 
location  entirely  changed  or  abandoned,  all  land  taken  by  law 
reverts  to  the  former  owner,  and  he  may  re-occupy  the  same. 
And  as  the  fee  is  all  the  time  in  him,  if  he  sell  a  part  of  his 
farm,  on  one  side  of  a  railroad,  and  bounds  it  by  the  road,  the 
grantee  acquires  a  right  in  the  fee  to  the  center  of  the  road,  as 
in  cases  of  deeds  along  highways,  etc. 

Such  being  the  respective  interests  of  land  owner  and  rail- 
road company  in  the  bed  of  the  road,  the  next  question  is,  as 
to  the  fences  along  this  narrow  belt  of  land.  Obviously,  the 
fences  ought  to  be  erected  and  maintained  by  the  railroad 
company,  or  the  land  owner  ought  to  be  compensated  for  the 


RAILROADS    THROUGH    FARMS.  29 

expense  of  doing  so  himself.  Accordingly,  as  the  more  simple 
mode  of  settling  the  question,  it  is  now  generally  provided  by 
statute,  that  railroad  companies  shall  do  all  the  fencing,  on  both 
sides,  and  ever  afterward  maintain  them.  And  where  that  is 
so,  the  compa4iy  is  liable  for  any  injury  to  the  adjoining  owner's 
cattle  or  beasts  which  stray  on  the  road,  and  arc  there  iiilled 
or  injured  by  passing  trains,  whether  there  is,  or  is  not,  any 
negligence  in  running  the  trains. 

But  where  there  is  no  positive  law  requiring  the  company  to 
fence,  the  duty  of  keeping  one's  animals  off  the  road  is  on  the 
owner  of  the  animals,  and  if  they  stray  upon  the  road,  and 
are  injured,  the  company  is  not  liable  unless  guilty  of  negli- 
gence in  running  the  train. 

And  even  where  the  law  actually  requires  the  railroad  com- 
pany to  keep  up  the  fences,  that  applies  only  to  cattle  belong- 
ing to  the  adjoining  owners,  or  lawfully  on  their  lands,  by 
their  permission.  It  does  not  apply  to  cattle  of  third  persons 
remotely  situated,  tliat  have  strayed  away,  and  wandered  on  to 
the  railroad,  and  then  killed.  In  such  cases  the  company  is 
not  responsible  for  any  defects  in  their  own  fence,  but  only  in 
case  they  have  negligently  run  down  the  beasts.  ■ 

These  are  the  general  principles  applicable  to  this  subject, 
but  it  is  so  mucli  controlled  by  local  vStatutes  and  decisions, 
that  it  would  be  impracticable  and  confusing  to  discuss  it  fur- 
ther here. 

Another  important  question  arising  about  railroads,  is  their 
liability  for  fires,  communicated  Ijy  their  passing  locomotives 
to  tlie  woods,  pastures,  or  buildings  of  farmers  along  the  route. 
Primarily,  a  railroad  company  is  not  liable  for  fires,  unless 
caused  liy  some  negligence  or  carelessness  of  their  employes. 
Formerly,  and  antecedently  to  any  statutes,  railroad  companies 
were  not  lialjle  for  hres,  caused  by  their  locomotives,  without 
proof  of  some  negligence,  either  in  the  construction  or  mode  of 
running  the  engine,  by  wliich  the  fire  was  caused,  or  otherwise. 
But  as  the  liability  to  such  fires  was  so  great,  and  the  amount 
of  damage  so  caused  was   very  extensive,  it  became  necessary 


30  FARM    LAW. 

to  eiilaige  their  liabilitj' ;  and  now  in  some  states,  by  statute, 
railroad  corporations  are  liable  for  all  damages  to  the  buildings 
or  personal  property  of  land-owners  along  their  route,  arising 
from  fires  communicated  by  their  locomotives,  and  without  any 
proof  of  negligence  or  carelessness,  either  in  the  company  or 
any  of  its  employes.  This  seems  to  be  the  law  in  Massa- 
chusetts. 

And  this  statute  has  a  very  liberal  construction,  extending 
not  only  to  buildings  immediately  adjoining  the  railroads,  and 
which  are  fired  directly  by  sparks  from  the  locomotives,  but 
also  to  buildings  at  a  long  distance  from  the  road,  and  which 
are  set  on  fire  by  sparks  flying  through  the  air  from  some 
building  nearer  by,  which  had  first  taken  fire  from  the  engine- 
As  a  protection  to  themselves,  however,  railroad  companies 
are  authorized  to  get  the  property  along  the  route  insured  for 
their  benefit ;  so  that,  if  obliged  to  pay,  they  may  remunerate 
themselves,  and  thus  the  burden  is  more  equally  divided. 
Difierent  states    may  have  difterent  statutes  upon  this  subject. 


CHAPTER  YIII. 

AS    TO    FARM    FENCES. 


It  was  a  fundamental  principle  of  our  law  (though  the  con- 
trary exists  in  many  of  the  United  States),  that  every  man 
must  keep  his  cattle  on  his  own  land  at  his  peril.  He  was 
liable  if  they  strayed  away  into  other  people's  grounds.  It 
was  necessary,  therefore,  at  common  law,  that  every  man  should 
keep  a  personal  watch  over  his  animals,  or  surround  his  land 
with  a  fence.     This  fence  was  primarily,  therefore,  not  to  keep 


AS    TO    FARM    FENCES.  31 

other  people's  cattle  out,  but  to  keep  his  own  in  :  and  so  any 
hind-owner,  if  he  l?ept  cattle,  was  bound  to  erect  the  entire 
fence  around  his  close,  whether  his  neighbor  kept  any  cattle  or 
not;  and,  if  the  latter  also  owned  any,  he  must  do  the  same, 
or  keep  his  beasts  at  home  in  some  other  way.  This  was  the 
law  in  Massachusetts,  Maine,  Vermont,  New  Hampshire,  New 
York,  Maryland,  Minnesota,  Indiana,  Michigan,  Pennsylvania; 
while  Connecticut,  Ohio,  Iowa,  Kansas,  West  Virginia,  Cali- 
fornia, and  some  others,  adopt  the  other  rule,  that  the  man 
whp  cultivates  his  land  must  keep  other  people's  cattle  off. 
And  statutes  sometimes  so  declare. 

But  two  parallel  fences  would  be  attended  with  useless  ex- 
pense ;  and,  as  one  and  the  same  fence  would  answer  for  two 
adjoining  proprietors,  it  was  long  ago  provided  by  statute  law, 
in  many  states,  that  adjoining  owners  of  improved  lands  should 
maintain  partition  fences  in  equal  shares  ;  and,  if  they  did  not 
agree  how  the  fence  should  be  divided,  either  might  apply  to 
the  fence  viewers,  elected  by  the  town  every  year,  to  decide 
which  part  each  proprietor  should  keep  up.  And  if,  after  such 
decision,  either  party  refused  or  neglected  to  build  or  keep  in 
repair  his  portion,  the  other  could  do  so,  and  recover  the  ex- 
penses (in  Maine  double  the  expenses)  of  the  delinquent  owner 
by  a  suit  at  law.  It  follows,  therefore,  that  if  my  adjoining 
owner  does  not  keep  up  his  half  of  the  fence,  and  my  cattle 
get  through  and  injure  his  crops,  he  has  no  redress  against  me, 
since  his  own  neglect  was,  in  part  at  least,  the  cause  of  his  in- 
jury. But  now  comes  in  a  very  important  addition  to  this 
rule  ;  and  this  is,  if  my  cattle  stray  beyond  the  immediately 
adjoining  land,  into  the  farm  of  a  third  person,  and  there  injure 
his  crops,  I  am  liable  for  the  damage  to  him,  although  my  own 
half  of  my  fence  is  good,  and  my  animals  escaped  tlirough  my 
immediate  neighbor's  defective  fence  ;  because,  as  to  all  persons 
except  my  nearest  neighbor,  I  am  still  bound  to  keep  my  cattle 
on  my  own  land ;  and  it  is  no  excuse  for  me,  so  far  as  third 
persons  are  concerned,  that  my  neighbor  neglected  his  halt  of 
our  division  fence.     Whether  my  neighbor   would  be  liable  to 


32  FARM    LAW. 

refund  to  me  what  I  had  to  pay  to  such  distant  owner,  is  not 
yet  settled  ;  but  it  is  established  that  the  latter  could  not  him- 
self sue  the  negligent  land  owner,  but  only  the  owner  of  the 
cattle.  Nay,  so  far  is  this  rule  carried,  that  although  such 
third  person  did  not  keep  up  h.is  own  fence,  and  the  cattle  go 
into  his  land  through  his  own  fault,  he  can  still  make  me  pay 
the  damages;  because  he  is  not  bound  in  law  to  keep  up  any 
fence  at  all,  except  as  against  his  nearest  neighbor,  and  not 
against  my  cattle  further  off.  In  other  words,  if  A,  B  and  C 
own  three  adjoining  lots,  and  A's  cattle  stray  into  B's  land 
through  B's  neglect,  he  has  no  remedy  against  A;  but  if  they 
stray  still  further,  on  to  the  land  of  C  also,  and  there  do  mis- 
chief, C  has  a  claim  for  the  damages  against  A,  even  though 
the  animals  went  through  his  own  broken-down  fence.  A 
must  keep  his  animals  at  home  at  his  own  peril.  So  if  your 
vicious  bull  escapes  from  your  pasture,  solely  through  a  defect 
in  the  fence,  which  your  neighbor  was  bound  to  keep  up,  and 
after  roaming  over  his  lot,  finds  his  way  into  other  lands,  still 
further  away,  and  theie  injures  man  or  beast,  you  are  re- 
sponsible, though  you  did  not  know  the  fence  was  down. 

For  similar  reasons,  if  A  turns  his  cattle  into  the  highway, 
and  they  come  on  to  your  land  from  the  road,  either  because 
your  front  fence  is  defective  or  altogether  gone,  you  have  a  rem- 
edy against  A  for  all  the  damages  you  sustain  ;  for  you  are  not 
obliged  to  have  any  fence  on  the  road,  except  to  keep  your 
own  cattle  in,  and  A  must  keep  his  own  cattle  at  home.  And 
so  stringent  is  this  rule,  that  if  other  people,  in  roaming  over 
your  grounds,  hunting,  fishing,  or  berrying,  leave  your  bars 
down,  by  which  your  cattle  escape  into  the  highway,  and 
thence  come  into  my  cornfield,  you  are  responsible  to  me  for 
all  the  damage,  although  not  actually  in  fault,  if  you  kept  all 
your  fences  up.  On  the  other  hand,  if  you  are  carefully 
driving  your  cattle  along  the  highway,  and  without  your  fault 
they  break  away  from  your  control,  and  run  into  my  adjoining 
land,  and  you  drive  them  out  as  soon  as  you  reasonably  can? 
you  are  not  responsible   for  the   damage   done  ;  for  you  had  a 


AS    TO    FARM    FENCES.  33 

right  to  drive  them  along  the  liighwaj,  with  proper  care  and 
attention  ;  while  in  the  other  case  they  were  not  lawfully  in 
the  highway  at  all,  although  the  owner  was  not  personally  at 
fault. 

The  proper  legal  height  of  all  division  fences  in  Massachu- 
setts, Maine,  and  some  other  states,  is  four  feet ;  and  they  may 
be  made  of  rails,  timber,  boards,  or  stone.  A  brook,  river, 
pond,  ditch,  or  hedge,  may  also  be  sufficient,  or  any  other 
things  which  the  fence-viewers  consider  equivalent  to  a  four- 
foot  rail-fence.  The  number  of  rails  is  not  prescribed  by  law. 
But  do  not  think  because  you  have  a  good  rail-fence,  four  feet 
high,  and  well  kept  up,  that  therefore  you  have  done  your 
whole  duty  in  keeping  your  animals  at  home  :  for  if  your 
greedy  cow  pokes  her  head  between  the  rails,  and  lops  oflf 
your  neighbor's  corn  or  cabbages,  you  are  as  much  bound  to 
pay  for  the  damage  as  if  you  had  driven  her  clear  in  and  told 
her  to  eat  her  fill. 

Neither  think  your  responsibility  is  always  confined  to 
damage  done  by  yovr  cattle.  If  the  cattle  are  injured  by  your 
negligent  fence  you  may  be  responsible  to  the  owner.  A  few 
years  ago  two  farmers  had  a  wire  fence  between  them,  now  s^ 
common  in  some  parts  of  the  country.  One  allowed  his  end 
of  the  fence  to  get  rusty,  and  fall  over  into  the  grass,  and 
gradually  it  broke  up  into  short  pieces;  the  other's  cow,  feed- 
ing in  the  tall  grass,  accidentally  swallowed  one  of  these  bits 
of  wire,  and  a  post  mortem  examination  soon  became 
necessary.  The  coroner's  inquest  decided  that  the  cow  must 
be  paid  for. 

If  that  is  good  law — and  I  suppose  it  is — your  wife  or  maid- 
servant should  be  careful — as  suggested  in  the  Albany  Law 
Journal — where  she  throws  her  old  hoop-skirt,  lest  some 
unlucky  cow  gets  hold  of  it  while  browsing  on  the  grass  and 
vines  that  have  run  over  and  concealed  it. 

These  division  fences  may  usually  be  placed  one-half  on 
each  side  of  the  line,  even  though  ditches  be  used  three  feet 
wide ;  and  both  owners  have  a  common  interest  in  the  whole 


34  FARM    LAW. 

fence  ;  and  they  must  be  kept  in  good  repair  throughout  the 
entire  year,  unless  both  parties  otherwise  agree.  But  the 
duty  of  maintaining  partition  fences  by  statute,  exists  in 
Massachusetts  only  when  both  parties  improve  their  lands. 
It  would  not  be  just  to  make  a  man,  whose  lands  are  wild,  or 
not  improved,  and  on  which  he  neitlier  lias  cattle  to  stray 
away  and  injure  others,  or  growing  crops  which  can  be  injured 
by  other  people's  animals,  to  pay  the  expense  of  building  or 
maintaining  a  fence  which  can  be  of  no  advantage  to  him. 
Accordingly,  if  only  one  of  the  adjoining  owners  improves  his 
land,  he  has  no  right  to  compel  the  other  to  pay  any  part  of 
the  expense  of  a  fence  (except  in  some  states  as  to  a  house-lot 
of  half  an  acre  or  less)  ;  and  if  he  needs  a  fence  to  keep  his 
own  animals  at  home,  or  for  any  other  purpose,  he  must  build 
it  himself.  If,  therefore,  A  owns  a  pasture-lot  alongside  of 
B's  wood-lot,  the  latter  is  not  bound  by  statute  to  help  main- 
tain a  fence  between  them ;  but,  if  A  puts  cattle  into  his  pas- 
ture, he  must  keep  them  there  as  best  he  can,  either  by  watch- 
ing them,  or,  if  he  thinks  it  cheaper,  by  building  a  fence 
himself  around  his  entire  lot.  So,  if  both  are  wood-lots,  the 
owners  are  not  obliged  to  erect  a  fence  ;  but,  if  either  allows 
his  cattle  to  range  the  woods,  he  must  take  care  they  do  not 
browse  through  his  neighbor's  woods,  or  he  will  be  responsible. 

In  some  states,  if  A,  the  owner  of  land  which  he  has  here- 
tofore kept  fenced,  wishes  to  lay  it  common,  he  can  do  so  by 
giving  six  months  notice  of  his  intention  to  the  occupants  of 
the  adjoining  land,  and  then  he  will  not  be  obliged  to  maintain 
a  fence,  so  long  as  his  land  lies  common  and  unimproved. 
The  safer  way  always  is  to  give  this  notice  in  writing.  But  he 
must  not  take  away  his  fence  adjoining  any  improved  land, 
without  first  giving  the  owner  or  occupant  an  opportunity  to 
purchase  it,  and  if  they  cannot  agree  upon  the  price,  the 
fence-viewers  will  appraise  it  for  them. 

The  sum  of  the  whole  matter  is  this  :  by  the  common  and 
general  law  every  man  is  bound  to  keep  his  own  cattle  on  his 
own  land  at  his  peril.     The  duty  of  doing  this  by  a  fence  is 


AS    TO    FARM    FENCES.  35 

created  wliolly  by  statute,  and  a  fence  need  not  be  made  ex- 
cept where  the  statute  clearly  requires  it.  And  when  the  law 
requires  a  man  to  erect  a  division  fence,  he  has  a  right  to 
such  use  and  occupation  of  the  adjoining  land  as  is  necessary 
to  carry  out  that  duty. 

What  we  have  thus  far  said  as  to  the  joint  expense  of 
fences,  relates  only  to  partition  fences  between  two  farmers. 
As  to  fences  along  a  railroad,  the  law  is  quite  different.  The 
general  railroad  law,  in  some  states,  requires  the  company  to 
maintain  a  suitable  fence  along  the  whole  line,  through  wood- 
land as  well  as  improved  land  ;  and  the  farmer  has  no  part  of 
the  expense  to  pay.  This  railroad  fence  need  not  be  always 
four  feet  high,  nor  need  it  always  be  so  close  as  the  division 
fence  between  land  owners.  It  must  be  "suitable"  merely, — 
suitable  for  the  place  where  it  is  situated  ;  and  through  the 
woods,  or  where  there  is  little  or  no  danger  of  animals  straying 
on  to  the  track,  it  might  be  quite  light,  and  yet  comply  with 
the  law.  But  if  any  cattle  of  the  adjoining  land-owner  do 
escape  through  it  on  to  the  track,  through  its  unsuitableness, 
and  are  there  injured  by  a  passing  train,  the  company  is 
responsible.  But  here,  again,  the  same  principle  comes  in 
which  we  have  before  stated  :  viz.,  the  company  is  not  bound 
to  fence  out  everybody's  cattle,  but  only  those  of  the  land-owner 
immediately  adjoining.  If,  therefore,  the  animals  of  one 
remote  from  the  railroad  break  out  or  stray  away  from  their 
pasture,  and  after  wandering  over  the  intermediate  lands, 
finally  find  their  way  on  to  the  railroad,  and  there  meet  their 
death,  the  railroad  company  is  not  absolutely  liable  :  the  owner 
should  have  kept  his  cattle  on  his  own  lot,  and  not  allowed 
them  to  trespass  on  others'  lands.  In  some  states  this  may 
not  be  so.  Of  course,  if  they  were  lawfully  pasturing  on  the 
lands  near  the  railroad,  by  permission  of  the  land-owner,  they 
would  be  protected  in  the  same  manner  as  his  own  animals 
are  ;  but  if,  unlawfully  straying  in  the  highway,  they  are  killed 
while  crossing  a  railroad,  the  company  is  not  bound  to  pay, 
unless  guilty  of  actual  negligence. 


36  FARM    LAW. 


CHAPTER  IX. 

IMPOUNDING    CATTLE. 


Closely  connected  with  the  subject  of  fences  is  that  of  im- 
pounding animals.  If  you  find  your  neighbor's  cattle  in  your 
cornfield,  there  are  three  courses  you  may  pursue : 

1  You  may  put  the  animals  in  the  town  pound. 

2  You  may  sue  the  owner  for  damages. 

3  You  may  quietly  turn  tiiem  into  the  highway,  and  say 
nothing. 

Of  these  three  the  last  is  the  easiest  to  be  done,  and  the 
hardest  to  make  up  one's  mind  to  do.  We  are  directed  in  the 
good  book  to  forgive  our  neighb(jr  his  trespasses,  but  my  copy 
says  nothing  about  forgiving  his  cattle  their  trespasses.  If  a 
man  ever  allows  himself  to  violate  the  third  commandment,  he 
is  tempted  to  use  that  outlet  for  his  indignation,  when  he 
jumps  up  from  the  dinner-table  in  a  hot  day  in  July  to  drive 
his  neighbor's  breachy  cattle  for  tlie  seventh  time  out  of  his 
garden  or  cornfield.  It  might,  perhaps,  alleviate  his  sufferings 
to  know,  that,  if  they  then  stray  away  and  are  lost,  it  is  not 
his  fault,  and  the  owner  has  no  claim  on  him  ;  and  he  may 
even  mildly  hasten  their  departing  steps  by  the  aid  of  a  good- 
sized  dog ;  and  if  the  said  dog,  in  the  excitement  of  the  mo- 
ment, takes  a  bit  out  of  the  nose  or  ear  of  the  trespassing 
cattle,  its  ovs^ner  is  not  bound  to  supply  another.  In  some 
states,  however,  you  must,  apparently,  be  careful  how  large 
and  fierce  a  dog  you  "set  on"  to  your  neighbor's  cattle,  lest 
you  also  suffer. 

The  second  remedy  of  a  suit  at  law  is  more  peaceful,  but 
slower,  and  more  likely  to  benefit  the  lawyer  than  the  farmer. 

Impounding  is  the  most  summary,  and  generally  the  most 


IMPOUNDING  Cattle.  37 

effective,  but  is  surrounded  with  legal  dangers  :  and   a  slight 
mistake  is  often  fatal,  and,  like 

"  Some  muskets  aimed  at  duck  or  plover, 
Bear  wide,  and  kick  their  owners  over." 

The  general  outline  of  this  remedy  in  Massachusetts  is  this. 
If  any  person  actually  finds  any  sheep,  swine,  horses,  or  neat- 
cattle  doing  damage  in  his  land,  he  may  drive  them  to  the 
town  pound,  or  some  other  suitable  place,  giving  them  suf- 
ficient food  and  water  ;  or  he  may  shut  them  up  in  his  own 
yard  for  a  reasonable  time  before  driving  to  the  pound,  and  in 
the  meantime  send  a  memorandum  to  the  owner  of  the  animals, 
stating  the  cause  of  impounding  them,  the  amount  of  damage 
done  by  them,  the  charges  for  feeding,  etc.,  in  order  that  the 
owner  may  come  and  pay  the  damages,  and  take  away  the 
beasts.  If  he  does  not  come,  or  if  the  party  impounding  pre- 
fers, he  may,  in  the  first  instance,  drive  them  to  the  pound,  or 
send  for  a  field  driver*  (who  is  generally  the  last  married 
man  in  town)  and  request  him  to  impound  them,  sending  a 
similar  memorandum  to  tlie  pound-keeper,  and  also  a  written 
notice  of  the  fact  to  the  owner  of  the  animals,  within  twenty- 
four  hours,  containing  a  description  of  the  beasts,  and  a 
statement  of  the  time,  place,  and  cause  of  impounding. 
Before  the  owner  can  release  his  animals,  he  must  pay  the 
damages  and  all  the  expense;  and,  if  he  decline  to  do  so,  they 
may  be  sold  by  public  auction,  and  the  balance  of  the  proceeds 
above  the  expenses  deposited  with  the  town  treasurer  for  the 
benefit  of  the  owner.  This  remedy  seems  to  be  seldom 
resorted  to  in  modern  days;  for,  in  most  of  the  town  pounds, 
which  we  pass,  we  notice  that  the  gate  is  entirely  gone,  or 
so  dilapidated  as  to  furnish  very  little  security  against  the 
escape  of  animals  confined  therein  :  nevertheless,  every  town 
in  Massachusetts  and  Maine  is  still  liable  to  a  fine  of  fifty 
dollars  for  not  keeping  one  or  more  suitable  pounds. 

A  recent   law  in   Massachusetts   has  added  one  more  very 
important   protection   against  invading   animals,   making  the 

*In  Maine,  the  ofllce  of  field-driver  no  longer  exists.    63  Me.  154, 


38  FARM    LAW. 

owner  of  any  sheep,  cattle,  horses,  swine,  or  fowls,  liable  to  a 
fine  of  ten  dollars  if  he  wilfully  allows  them  to  enter  another's 
orchard,  garden,  mowing  land,  or  other  improved  land,  after 
receiving  written  notice  from  the  owner  forbidding  it.  This 
statute  extends  to  fowls,  which  tlie  laws  in  regard  to  impound- 
ino;  did  not. 


CHAPTER  X. 
fakmer's  animals. 


Passing  from  the  subject  of  cattle  straying  away,  and 
doing  damage  on  other  people's  grounds,  we  have  next  to 
consider  how  far  the  farmer  is  liable  for  their  good  behavior 
in  the  public  streets,  or  even  on  his  own  premises.  It  is  clear 
enough,  that  if  a  vicious  horse  by  the  city  sidewalk  suddenly 
nips  a  piece  out  of  your  coat-sleeve  as  you  are  passing  by,  and 
his  owner  knew  his  habits,  he  is  bound  to  pay  the  tailor's  bill ; 
whereas  if  he  only  frightens  you,  and  makes  you  jump,  you 
have  no  redress,  for  that  is  what  the  law  calls  damnum  absque 
injuria.  That  is  an  innocent  expression  in  itself;  but,  if  you 
give  an  excited  utterance  to  it,  a  bystander  might  think  you 
were  indulging  in  forbidden  language  ! 

It  may  not  be  generally  understood  that  if  a  man  turns  his 
animals  loose  in  the  public  highway,  and  they  there  injure  the 
person  or  property  of  another  lawfully  using  the  way,  the 
owner  is  responsible  for  all  damages  they  may  do,  whether  he 
knew  they  had  any  dangerous  disposition  or  not.  He  had  no 
right  to  let  his  cattle  run  loose  in  the  public  highway.  In  one 
instance  a  farmer's  old  black  sow  was  wallowing  in  the  gutter 


FARMER  S    ANIMALS. 


39 


by  the  side  of  the  road,  and  frightened  a  horse  and  threw  a 
young  lady  out  of  the  carriage;  the  farmer  was  held  liable, 
although  he  did  not  know  the  animal  was  at  large.  In  another 
instance  a  man  let  his  horse  go  out  to  feed  in  a  public  place 
where  some  very  young  children  were  playing,  and  some  of 
them  began  to  switch  him,  whereupon  he  turned  and  kicked 
one  of  them  so  that  he  died,  and  the  owner  was  convicted  of 
manslaughter.  Had  he  known  the  animal  was  dangerous,  it 
might  have  been  more  serious  with  him,  since,  in  the  Mosaic 
law,  it  was  declared  that  if  the  owner  of  an  ox  knew  that  it 
pushed  with  its  horn,  and  did  not  keep  it  in,  and  it  killed  a 
man  or  woman,  not  only  the  ox,  but  also  the  owner,  was  put 
to  death. 

And  now  as  to  his  liability  for  animals  on  his  own  premises. 
Every  owner  of  a  dangerous  or  vicious  animal  known  to  be 
such,  is  liable  for  all  injury  he  may  do  to  another,  even  though 
the  latter  is  at  the  time  trespassing  on  the  former's  premises. 
If,  therefore,  a  man,  while  hunting  through  your  woods  on 
Sunday,  is  attacked  and  bitten  by  your  savage  dog,  you  must 
pay  for  the  pound  of  flesh,  although  you  did  not  set  him  on. 
You  should  have  posted  up  tlie  advice  of  St.  Paul, — Beware  of 
Dogs.  And  in  like  manner,  if  a  boy,  while  robbing  an 
orchard,  is  tossed  by  a  vicious  IniU  into  the  boughs  of  the 
apple  tree  overhead,  the  owner  is  as  much  liable  in  law  to  pay 
for  the  boy's  torn  trousers  as  if  he  had  received  the  same 
salutation  when  boldly  coming  up  the  path  in  broad  daylight, 
to  call  on  the  farmer's  youngest  daughter.  In  one  instance  a 
farmer,  who  was  much  annoyed  by  strolling  fishermen,  put  a 
savage  bull  into  the  lot  along  the  stream.  On  his  neighbors 
remonstrating  with  him  that  he  ought  to  give  strangers  notice 
what  kind  of  an  animal  it  was,  he  remarked,  "  the  fellow 
would  give  them  notice  enough  himself;"  but,  as  his  notice 
was  rather  too  brief,  the  farmer  had  to  pay  five  hundred 
dollars  for  two  broken  ribs. 

And  if  the  owner  of  a  vicious  animal  is  liable  for  injuries  to 
a  trespasser,  much  more  is  he  liable  to  one   who  is   lawfully 


40  FARM    LAW. 

walking  through  his  grounds.  Not  long  since,  the  proprietors 
of  that  b^utiful  "  Congress  Spring  Park,"  at  Saratoga,  were 
ordered  by  the  court  to  pay  $6,500  to  a  young  lady  named 
Edgar,  who,  while  enjoying  a  walk  through  the  park,  was 
attacked,  and  seriously  injured  by  one  of  the  animals  kept 
there  as  a  part  of  the  attractions  of  the  place  ;  and  it  was 
thought  to  be  no  excuse  that  the  owners  had  posted  up  a  con- 
spicuous notice  : — "  Beware  of  the  Buck,"  And  after  a 
very  elaborate  argument,  the  Supreme  Court  of  the  United 
States  at  Wasliington  refused  to  disturb  the  decision.  What  a 
dear  creature  that  animal  was,  wasn't  it,  especially  after  such 
a  verdict  ! 

But  this  extreme  and  severe  liability  absolutely  depends 
upon  the  fact  whether  the  owner  of  the  animal  had  any 
previous  knowledge  of  the  brute's  warlike  disposition.  If  so, 
the  mere  keeping  of  such  an  animal  unconfined  is  itself,  in 
law,  deemed  culpable  negligence.  If  he  did  not  know  the 
fact,  some  other  form  of  negligence  is  essential  in  order  to 
make  the  owner  of  an  animal  liable  for  his  conduct  while  on 
the  owner's  premises,  or  while  lawfully  in  the  highway  under 
the  care  of  a  keeper.  For  this  reason,  if  a  man's  horse  runs 
away  in  tlie  street,  and  injures  some  one,  or  breaks  a  carriage, 
the  owner  is  not  liable,  unless  he  carelessly  left  him  unhitched, 
or  was  guilty  of  some  other  negligence.  The  not  uncommon 
opinion  to  the  contrary  is  quite  erroneous. 

As  to  ownership  of  a  farmer's  animals.  These,  like  all 
other  personal  property,  may  usually  be  bought  and  sold  by  an 
oral  bargain,  and  as  all  know,  not  even  a  bill  of  sale  is  neces- 
sary; but  in  many  states,  if  the  animal  is  over  fifty  dollars  in 
value,  a  mere  oral  contract  for  its  purchase  is  not  binding  in 
law  unless  it  be  actually  delivered,  or  the  price  be  paid,  in 
whole  or  in  part,  or  unless  some  note  or  written  memorandum 
of  the  sale  be  made;  but  the  precise  details  of  this  statute  can 
not  be  fully  stated  in  a  treatise  of  this  kind. 

One  caution  may  be  necessary  in  buying  animals:  that  is, 
be  sure  that  the  seller  really  owns  them;  for  if  a  thief  steals  a 


farmer's  animals.  41 

horse,  and  sells  him  to  you,  and  you  pay  your  money  for  liim, 
in  good  faith,  tlie  real  owner  may  come  and  take  him  from 
you,  without  repaying  what  you  have  advanced.  Perhaps  he 
would  be  bound  to  pay  a  fair  charge  for  your  keeping  him  in 
the  meantime. 

Of  course  a  farmer  does  not  lose  his   right  of  ownership  in 
his  domestic  animals,  although    they   have  strayed   away,  and 
been  really  given  up  as  lost.     And   this  is   so  as  to  animals 
which   were  originally   wild,    but   which  had   been    tamed  or 
reclaimed.     A  farmer  in  New  York  state  once  tamed  a  flock 
of  wild  geese,    and  they    wandered    away    on  to  a    neighbor's 
pond,  and  he  shot  them,  but  he  was  held  responsible  for  their 
value.     On  a  similar  principle,  if  a  swarm  of  bees  leave  one  of 
your  hives  and  take  to  the  woods,    and  you  follow  them,    and 
mark  the  tree  where  they  light  and  enter,  your  ownership  of 
them   still  continues  good  as  to    all  persons,    unless    it  be  the 
owner  of  the  tree.     No  other  l)ee-hunter,    at  any  rate,    has  a 
right  to  capture  and    carry  them  away,  or  even   their  honey. 
Bees  belong,  by  nature,  to  the  class  of  wild  animals,  so  called  ; 
and  wild   bees  in  a  tree  ordinarily  belong  to  the  owner  of  the 
land  where  the  tree  is  situated;  therefore    a  third  person    who 
finds  a   tree  in  the  woods  containing   a  swarm    of  bees,  and 
marks  it  with  his  initials,  does  not  thereby  acquire  any  owner- 
ship in  the  bees,  even  as  to  any  other  bee-hunter,  who  comes 
along  afterward,  and  actually  captures  and  carries  them  away. 
The  latter  could  hold  them  as  against  the  first  finder,    though 
perhaps  not  when  claimed  by  tlie  owner  of  the  tree.     In  cases 
of  wild  animals,  possession  is  pre-eminently  "nine  points  in  the 
law." 

The  same  is  true  of  other  wild  animals.  A  hunter  does  not 
acquire  any  legal  right  or  ownership  in  a  wild  animal  by  pur- 
suing him  with  dogs  and  gun,  not  even  if  he  has  wounded 
him,  and  is  pressing  him  so  closely  that  his  capture  is  almost 
certain.  Any  other  hunter  may  "  sail  in"  and  take  him  first, 
and  in  law  would  have  the  better  right.  Perhaps,  if  the  first 
hunter  had  caught  him  in  his  trap,  from  which    he    could   not, 


42  FARM    LAW. 

in  all  probability,  have  escaped,  the  rule  might  be  different. 
But  wild  animals,  which  are  of  any  value,  either  for  food,  fur, 
or  otherwise,  when  once  reclaimed  or  tamed,  are  properly 
subjects  of  private  property,  and  so  long  as  they  remain  such, 
a  man's  right  to  them  is  fully  protected  by  the  law. 


CHAPTER      XI 

ABOUT    DOGS. 


The  question  of  lial)ility  for  and  pi-oteciion  against  dogs 
has  been  a  perplexing  one  from  earliest  times.  The  laws  of 
Solon — undoubtedly  the  wisest  law-giver  of  his  age — declared, 
that,  if  any  dog  bit  a  person,  he  should  be  delivered  up,  and 
bound  to  a  log  of  wood  four  cubits  long;  and  the  Romans  also 
adopted  the  same  law  in  tlieir  "  Twelve  Tables;"  while  an 
early  law  in  Wales  provided,  that,  after  a  dog  liad  bitten  three 
persons,  he  should  be  first  tied  to  his  mastei"'s  leg,  and  then 
killed.  • 

Owing  to  the  naturally  wild  and  fierce  disposition  of  dogs, 
it  has  not  been  generally  thought  necessary  by  legislators,  in 
order  to  make  the  owner  liable,  to  prove  that  he  actually 
knew  the  dog  was  accustomed  to  bite,  as  it  is  in  the  case  of 
other  domestic  animals.  The  law  presumes  that  the  son  of 
every  Puritan  farmer  has  been  brought  up  from  boyhood  to 
repeat  those  lines  of  good  old  Dr.  Watts  : — 

"Let  dogs  delight  to  bark  and  bite, 
For  God  hath  made  them  so." 

Accordingly  the  owner  is  liable,  if  they  do,  whether  his 
education  on  this  point  has  been   neglected  or  not.     And  not 


AB'OUT    DOGS.  43 

only  so,  he  must,  in  both  Massachusetts  and  Maine,  pay- 
double  damages  for  the  pleasure  of  keeping  such  animals  ; 
and,  after  actual  notice  of  his  disposition,  the  damages  may 
be  sometimes  increased  to  threefold.  And  so  comprehensive 
is  this  law  that,  if  your  dog  rushes  out  into  the  street,  and  in 
mere  play  jumps  at  a  horse's  head,  whereby  he  is  frightened 
and  runs  away,  breaking  the  carriage,  and  perhaps  the  limbs 
of  the  occupants,  you  are  responsiljle  for  double  the  amount  of 
the  entire  damage,  though  it  amount  to  several  thousand 
dollars  ;  for  the  liability  of  the  owner  is  not  limited  to 
damages  from  the  bite  of  a  dog,  but  extends  to  any  direct 
injury,  however  caused.  Again,  if  your  dog  is  at  large, 
although  he  is  a  good-natured  Newfoundland,  and,  being  teased 
and  irritated  by  young  children  at  play,  turns  upon  them,  and 
bites  one  severely,  you  may  be  liable  to  heavy  damages, 
although  the  dog  was  never  known  to  bite  before. 

In  a  recent  case  in  Massachusetts,  a  boy  thirteen  years  old 
met  a  large  dog  weighing  about  one  hundred  pounds,  and  as 
the  dog  approached,  the  boy  struck  him  with  a  stick  about 
three  feet  long,  and  thereupon  the  dog  snapped  at  him,  and  bit 
him  on  the  leg  ;  but  the  dog  had  to  pay  for  it,  because  the 
jury  thought  the  boy  acted  as  most  boys  of  his  age  would  have 
done!  If  he  had  been  thirty-one  instead  of  thirteen  years  old, 
the  dog  would  have  come  off  victorious. 

The  old  notion  was  that  every  dog  was  entitled  to  one  Oite 
before  his  owner  could  be  made  liable  ;  but  this  doctrine  is 
now  exploded,  and  in  these  days  every  bite  counts  one,  large 
or  small.  And  this  is  so,  although  the  dog  is  duly  licensed 
and  collared.  The  object  of  the  dog-tax  was  not  to  exempt 
the  owner  of  a  dog,  when  known,  from  his  former  liability  for 
all  his  dog's  mischief,  but  to  provide  a  fund  for  the  remuner- 
ation of  the  farmer,  when  the  owner  was  not  known,  or  was 
not  pecuniarily  responsible.  Accordingly,  in  Massachusetts, 
any  man  whose  animals  are  injured  by  a  dog,  may  now  have 
either  mode  of  redress, — he  may  file  his  claim  with  the  select- 
men, and  take  simply  the  amount  of  damages  he  may  have 


44  FARM    LAW. 

sustained;  or  he  may  "go  for"  the  owner  of  the  dog,  and  get 
double  damages,  if  he  can  :  but  he  cannot  try  both  methods. 
If  he  is  paid  his  simple  damage  out  of  the  dog-tax,  the  county 
may  compel  the  owner  of  the  guilty  dog  to  refund  the  amount 
paid  out.  This  choice  of  remedies,  however,  does  not  exist  in 
Maine,  for  in  that  state  he  must  look  only  to  the  keeper  of  the 
dog  for  redress.  And  if  the  keeper  of  the  dog  is  •  not  the 
owner,  but  merely  harbors  the  beast,  he  is  liable  for  the  damage 
done  just  the  same.  If  one  is  injured  in  his  own  person,  his 
only  remedy  for  remuneration  is  against  the  owner  of  the  dog. 
The  "dog-law"  does  not  include  injuries  to  man,  but  only  to 
his  domestic  animals.  Perhaps  it  should  be  extended  in  this 
respect. 

But  no  man  is  obliged  to  wait  until  the  mischief  is  done, 
and  then  seek  redress  by  the  law's  delay.  You  may  take  the 
law  into  your  own  hands,  and  kill  any  dog,  licensed  or  not, 
that  suddenly  assaults  you  while  peaceably  walking  or  riding 
in  the  public  streets  ;  and  so  you  may  if  the  dog  is  found  out 
of  the  enclosure  or  care  of  the  owner,  wounding,  worrying,  or 
killing  any  neat-cattle,  sheep  or  lambs.  So  as  to  a  dog  which 
continually  haunts  your  house,  barking  and  howling  day  and 
night,  disturbing  the  peace  and  quiet  of  your  family.  But  you 
could  not  lawfully  kill  a  neighbor's  dog  merely  because  he  was 
peaceably  walking  over  your  grounds  without  leave. 

If  a  dog  is  not  licensed,  your  right  to  kill  him  is  much 
broader.  The  law  of  Massachusetts  says  you  may  kill  him 
"  whenever  or  wherever  found."  These  are  its  exact  words. 
But  if  you  think  this  authorizes  you  to  kill  him  on  his  owner's 
premises,  and  you  should  pursue  him  into  his  owner's  house 
and  there  kill  him,  contrary  to  his  master's  wishes,  you  might 
find  out  your  mistake  by  being  compelled  to  pay,  not  only  the 
full  value  of  the  dog,  but  also  for  unlawfully  entering  the  own- 
er's premises.  "  Whenever  and  wherever  found,"  therefore, 
don't  mean  exactly  what  it  says.  Such  are  the  quirks  of  the 
law. 

Again  :  do  not  think,  that,  because  you  can  openly  and  pub- 


ABOUT    DOGS.  45, 

licly  shoot  an  unlicensed  dog  which  is  hanging  around  your 
premises  annoying  your  family,  you  can  therefore  poison  him  ; 
for  tliat  kind  of  physic  is  not  to  be  thrown  even  to  dogs,  and 
the  mere  exposing  of  any  poison  for  that  purpose,  whether  the 
dog  touches  it  or  not,  may  cost  you  fifty  dollars  and  the  costs 
of  prosecution.  And  this  is  very  moderate,  considering,  that, 
for  the  malicious  poisoning  of  some  other  domestic  animals, — 
even  a  sucking  calf, — you  may  obtain,  if  you  live  iw  Massa- 
chusetts, a  free  residence  in  that  splendid  new  State  building 
at  Concord  for  five  years^  or  if  you  live  in  Maine  you  may  be 
a  guest  at  Thomaston  iov  four  years^ — that  is,  unless  you  see 
fit  to  break  out  before  that  time  !  This  was  delivered  just 
after  several  prisoners  had  succeeded  in  escaping  fi-om  the 
State  Prison  at  Concord,  Mass.  This  much  for  the  law  of 
dogs.  And  the  only  crumb  of  consolation  I  can  ofter  on  this 
subject  is  this  :  if  two  dogs,  yours  and  your  neighbor's,  go  off 
on  a  joint  raid  on  a  flock  of  sheep,  you  are  bound  to  pay  only 
for  those  your  dog  killed,  and  not  the  others,  if  anybody  can 
find  out  which  was  which  ;  whereas,  if  the  two  owners  of  the 
dogs  go  out  together  to  rob  a  melon-patch,  one  is  liable  for  all 
the  melons  carried  away,  although  the  other  ate  them  all ;  so 
that  in  one  respect  the  law  seems  to  favor  the  dogs.  On  the 
other  hand,  as  a  man  is  not  liable  for  any  sheep,  fowls,  or 
other  things  which  his  mischievous  boys  wantonly  kill  when 
coming  home  from  an  unsuccessful  hunt,  drunk  or  sober,  in 
this  respect  again  the  law  is  rather  against  the  dogs. 

However  useful  dogs  may  be,  it  was  a  principle  of  the  old 
common  law  of  England,  adopted  in  many  American  states, 
that  a  man  could  not  have  any  ownership  in  a  dog,  and  there- 
fore if  I  should  steal  your  dog  (instead  of  one  of  your  chick- 
ens), 1  could  not  be  convicted  of  larceny  for  it.  But  in  many 
states  a  more  sensible  rule  exists,  either  by  statute,  or  other- 
wise. 


46  FARM    LAW. 


CHAPTER  XIL 

LIABILITY    FOR    HIS    3IEX. 


The  liability  of  a  farmer  who  employs  many  hands  may 
prove  extremely  onerous  at  times.  As  a  general  rule,  he 
is  liable  for  all  the  injury  they  do  while  actually  employed  in 
his  business  ;  therefore  if  you  send  a  boy  to  burn  old  brush, 
and  the  lad  leaves  his  work  to  look  after  his  patridoe-snares  or 
rabbit-boxes  in  the  wood,  and  the  fire  runs  into  the  next  field, 
and  consumes  the  crops  or  fence  of  your  neighbor,  you  must 
pay  the  bill,  although  you  told  him  to  watch  it  carefully,  and 
never  leave  it  a  minute.  If  you  send  a  load  of  farm-produce 
into  town,  and  the  driver  falls  into  a  doze  and  runs  into  an- 
other team,  you  must  pay  for  the  broken  spokes.  If  your 
man,  in  going  to  or  from  the  hay-field,  carelessly  swings  his 
scythe,  and  cuts  an  ugly  gash  in  the  leg  of  a  passer-by,  you 
had  better  pay  the  doctor's  bill,  and  be  glad  to  get  off  thus 
easy.  If,  in  cutting  your  wood,  a  man  accidently  cuts  over 
the  line,  on  your  neighbor's  lot,  you  are  responsible,  although 
you  told  him  where  the  line  was.  A  short  time  since  a  man 
was  driving  his  master's  horse  and  wagon  through  Bromfield 
street,  Boston,  on  his  master's  business,  when  the  horse  kicked 
off  a  hind-shoe,  which  struck  a  large  plate-glass  window  in  a 
store,  and  the  owner  of  the  animal  had  to  buy  another  pane  of 
glass.  And  though  your  man  shows  a  touch  of  maliciousness 
in  his  act  done  in  the  prosecution  of  your  business,  and  inten- 
tionally runs  into  another  team  which  somewhat  obstructs  his 
way  while  driving  your  load,  you  may  not  screen  yourself 
behind  his  unnecessary  and  wilful  violation  of  your  orders. 
Of  course,  in  all  these  cases,  you  could  compel  the  servant  to 
repay  you  all  the  expenses  he  had  thus  caused  you  by  his  mis- 
conduct.    On  the  other  hand,  to  make  you  responsible  for  his 


LIABILITY   FOR    HIS    MEN.  47 

carelessness,  he  must  have  been  at  the  very  time  on  your  busi- 
ness. If  he  borrows  your  horse  and  wagon,  and  goes  off  on 
pleasure,  or  business  of  his  own,  and  runs  over  somebody,  you 
are  not  responsible  merely  because  it  was  your  horse  and 
wagon ;  much  less  would  you  be  liable  if  your  servant  took 
your  team  without  your  knowledge  on  pleasure  or  business  of 
his  own. 

How  it  would  be  if  the  fellow  was  on  his  own  business  and 
yours  too,  is  a  nice  question,  which  might  puzzle  even  a  "Phil- 
adelphia lawyer."  In  one  instance  a  farmer  lent  his  man  his 
team  to  go  to  town  for  a  holiday,  and  asked  him  to  stop  at  the 
butcher's  on  his  way  home,  and  bring  along  a  piece  of  meat 
for  nexi  day's  dinner.  While  fulfilling  this  order,  the  man 
also  took  a  little  "  fire-water,"  and  soon  after  ran  over  an  old 
woman  in  tlie  public  highway  ;  but  the  master  was  considered 
not  responsible.  Tiiis  was,  however,  in  the  courts  of  the 
Emerald  Isle. 

One  more  distinction  on  this  subject  it  may  be  well  to  state  ; 
^nd  that  is,  that  although  an  employer  is  responsible  for  any 
careless  injury  his  men  may  do  to  third  persons,  he  is  not 
responsible  for  such  an  injury  to  other  fellow-workmen.  If  a 
hired  man,  therefore,  by  the  very  same  act  of  negligence,  in- 
jures a  co-laborer  and  also  a  bystander,  the  latter  would  have 
redress  against  the  master,  and  the  other  not  ;  for,  by  a  species 
of  rather  artificial  reasoning,  I  think,  a  man,  when  hiring  out, 
is  supposed  in  law  to  have  anticipated  any  direct  injury  from 
the  carelessness  of  his  co-laborers,  and  taken  the  risk  on  him- 
self, whatever  his  rate  of  wages.  This  rule  does  not  prevent 
his  wife  from  receiving  for  any  to  her  caused  by  the  careless- 
ness of  her  husband's  fellow-workmen.  But,  on  the  other 
hand,  he  is  not  presumed  to  have  contemplated  any  negligence 
on  the  part  of  his  employer ;  and  therefore  he  has  a  remedy 
against  the  latter  for  his  own  personal  carelessness,  or  in  pro- 
viding dangerous  or  insufficient  machinery  or  apparatus,  or 
even  in  hiring  notoriously  incompetent  or  habitually  careless 
men.     In  one  instance  an  employer  was  compelled  to  pay  two 


48  FARM    LAW. 

hundred  dollars  to  his  hired  man,  who  fell  into  a  barrel  of  hot 
water,  set  in  the  ground  and  carelessly  left  uncovered,  but 
which  the  man  did  not  know  of.  And  this  last  rule  would 
probably  render  the  employer  liable  for  any  injury  to  his  serv- 
ants from  dangerous  or  vicious  animals  intrusted  to  them  to 
take  care  of;  at  least,  if  the  owner  knew  of  their  character, 
and  the  man  did  not.  But  this  whole  subject  is  surrounded 
with  subtle  distinctions;  and  my  best  advice  to  you  is,  that,  if 
you  ever  have  such  a  case,  do  not  rely  upon  this  article,  nor 
upon  any  of  those  books  called  "  Every  Man  his  own  Lawyer," 
but  go  and  get  the  best  legal  counsel  you  can  find. 


CHAPTER  XIII. 

ABOUT    riRES. 


If  a  careless  hunter  fires  your  woods,  and  much  to  his  con- 
sternation, the  flames  spread  to  your  fields,  and  run  along  the 
fences  to  your  barn,  he  is  responsible  for  the  whole  loss, 
although  he  did  his  best  to  stay  its  progress.  A  man  who 
wrongfully  sets  in  operation  a  dangerous  instrument,  must  take 
all  the  consequences  diiectly  caused  thereby  ;  and  this  would 
be  so  whether  the  fire  ran  along  the  ground  continuously,  or 
whether  the  sparks  were  blown  through  the  air  a  considerable 
distance  over  intervening  land,  and  then  set  fire  to  some  per- 
son's property. 

But  as  any  farmer  has  a  legal  right  to  burn  the  brush,  old 
stumps,  etc.,  on  his  own  land,  if  he  does  so  at  proper  times 
and  in  a  proper  manner,  he  is  not  responsible,  if,  by  a  sudden 
rise  of  wind  or  other  cause,  without  negligence  on  his  part, 
the  fire  is  accidently  communicated  to  a  neighbor's  premises, 
and  causes  him  serious  injury.  The  gist  of  his  liability  (I 
believe  the  lawyers  call  it)  in  such  cases  is  some  carelessness, 
either  in  the  time  of  setting  the  fire,  or  the  manner  of  doing 


ABOUT    FIRES.  49 

SO,  or  in  watching  it  afterward  ;  and  the  man  who  suffers  is 
bound  to  make  it  clear  that  the  other  was  to  blHuie.  But  even 
your  negligence  will  not  always  render  you  liable  for  the 
spread  of  a  fire,  unless  it  was  originally  kindled  by  you  inten- 
tionally. Therefore,  if  your  barn  takes  fire  through  your 
carelessness  with  the  lantern,  or  that  of  your  man  with  his 
pipe,  and  thereby  your  neighbor's  property  is  also  consumed 
you  are  not  bound  to  pay  for  it :  the  law  seems  to  consider 
that  you  have  suffered  enough  for  your  conduct  in  the  loss  of 
your  own  property;  although  there  is  some  difference  of  opin- 
ion about  this. 

Still  less  would  you  be  responsible  if  the  fire  originated 
from  causes  beyond  your  control.  If  your  barn  is  struck  by 
lightning,  or  your  haystack  ignites  by  spontaneous  combustion, 
without  any  fault  on  your  part,  and  the  flames  spread  to  the 
adjoining  owner's  propei'ty,  it  would  be  hard  indeed  if  you  had 
not  only  to  lose  your  own,  but  to  pay  for  his  also.  And  I 
suppose,  even  if  you  were  careless  in  not  promptly  and  ener- 
getically putting  it  out  when  you  could  have  done  so,  and  it 
spreads  beyond  your  control,  this  would  not  render  you  liable, 
as  perhaps  it  might  have  done  had  you  purposely  set  fire  to 
your  brush-heap  or  stubble. 

As  to  railroad  fires  the  law  is  stated  elsewhere. 


CHAPTER  XIV. 

WATER   RIGHTS    AND    DRAINAGE. 


Water  is  flowing  and  fleeting,  and  the  rights  of  farmers 
therein  are  much  of  the  same  kind.  If  a  stream  ot  water 
flows  through  a  farm,  the  owner  has  a  right  to  use  any  reason- 
able quantity  of  it  as  it  flows  along,  for  watering  his  stock, 
irrigating  his  land,  or  supjilying  his  house  for  domestic  use. 
But  he  must  not  monopolize  the  whole:  his  neighbor's  cattle 


50 


FARM    LAW. 


must  have  water  also.  Perhaps  if  the  stream  be  very  small, 
and  his  own  reasonable  wants  consume  the  whole  of  it,  he 
might  have  a  right  to  nse  the  whole.  He  may,  to  some  ex- 
tent, change  the  course  and  flow  of  the  brook  on  his  own  land, 
provided  he  turns  it  back  into  the  natural  channel  before  it 
reaches  the  land  below  him.  He  has  no  right  to  conduct  it 
into  his  neighbor's  land,  without  his  consent,  at  a  different 
point  or  place  than  where  it  naturally  entered  therein.  He 
may  build  fish  ponds,  or  otherwise  dam  up  the  stream,  pro- 
vided he  does  not  thereby  flow  back  on  the  land  above  him. 
If  he  does  so,  he  is  liable  to  a  suit  for  trespass,  and  finally,  if 
he  continues  it,  to  an  injunction.  A  farmer  acquires  no  right 
to  flow  another's  land  without  his  consent,  as  a  mill-owner  has; 
for  the  statutes  giving  such  right,  upon  payment  of  a  fair  com- 
pensation, generally  apply  only  to  mill-dams,  cranberry-dams, 
and  the  like:  and,  if  your  neighbor  below  you  does  so  dam  up 
the  stream  as  to  flow  back  on  yon,  you  may  enter  on  his  land, 
and  take  down  enough  of  the  obstruction  to  relieve  your  land 
of  the  overflow. 

So,  if  a  natural  stream  becomes  obstructed  by  leaves,  sticks 
and  rubbish,  you  have  a  right  to  go  on  to  the  land  and  remove 
the  obstructions,  so  that  the  water  will  flow  as  freely  as  before; 
and  the  natural  deposits  you  may  place  on  the  banks  of  the 
stream.  The  same  rules  prevail  as  to  artificial  water-courses 
or  ditches,  provided  you  have  acquired  a  right  to  have  a  ditch 
running  through  another's  lands.  But  you  have  not  ordinarily 
such  a  right,  unless  you  or  your  predecessors  have  purchased 
the  privilege  of  him,  or  have  enjoyed  it  so  long  and  under 
such  circumstances  as  to  have  thereby  gained  a  prescriptive 
right  as  it  is  called,  or,  lastly,  have  had  the  ditch  opened  by 
commissioners  appointed  by  the  court  under  the  general  stat- 
utes of  Massachusetts. 

The  rights  and  liabilities  of  farmers  in  surface-water  are 
very  different  in  some  states  from  those  in  flowing  or  running 
streams.  By  "surface-water"  is  meant,  not  only  that  which 
comes   from  falling  rains  and  melting  snows,   but  also  that 


WATER    RIGHTS    AND    DRAINAGE.  51 

which  oozes- out  of  the  ground  from  springs  or  marshy  places, 
and  which  finds  its  way  over  the  surface,  or  througli  the 
tussocks,  but  is  not  gathered  into  a  bed  or  current  like  a  brook 
or  rivulet.  When  once  collected  into  a  stream,  with  a  bed  and 
banks,  it  loses  its  character  as  surface-water,  and  becomes 
subject  to  different  rules  ;  but,  so  long  as  it  is  only  surface- 
water,  any  man  on  whose  land  it  is  has  a  right  to  detain  and  use 
the  whole  of  it  on  his  own  land  and  for  his  own  purposes,  and 
is  not  bound  to  let  any  portion  of  it  flow  on  to  the  land  below, 
unless  he  wishes.  On  the  other  hand,  he  may  turn  the  whole 
of  it  on  to  the  premises  below  him,  whether  grass-land  or 
cultivated  field,  even  though  it  be  a  serious  injury  to  such 
neighbor.  In  Indiana,  a  short  time  ago,  a  farmer  owning 
lands  on  the  Ohio  river,  which  were  often  subject  to  overflow, 
planted  a  row  of  trees  on  his  own  land,  and  along  the  division 
line  between  his  farm,  and  the  proprietor  above  him,  whereby, 
in  times  of  great  freshets,  the  drift-wood  and  rubbish,  floating 
along,  was  deposited  on  the  land  of  his  neighbor,  and  caused 
him  some  considerable  troul)le  and  damage  to  remove  it,  but  it 
was  decided,  at"ter  a  very  elaborate  argument,  that  the  upper 
proprietor  had  no  redress. 

If  a  farmer  wishes  to  protect  himself  from  mere  surface- 
water,  he  must  build  up  some  embankment  at  the  edge  of  his 
land,  and  stop  the  flow,  as  he  has  a  perfect  right  to  do, 
although  he  thereby  makes  quite  a  pond  above,  and  injures  the 
crop  there.  But  the  law  in  some  states  is  not  so.  And  as  the 
farmer  may  turn  the  surface-water  from  his  own  land  into 
yours,  without  being  liable,  so  a  highway  surveyor  may  con- 
duct the  road-wash  on  to  you,  even  though  it  sweeps  sand  and 
gravel  into  your  best  mowing.  If  he  turn  a  water-course  on  to 
you  in  that  way,  you  cannot  sue  him,  but  may  in  Massachusetts 
appeal  to  the  selectmen,  under  the  public  statutes,  chap.  52, 
§12  (in  Maine,  under  R.  S..  chap.  18,  §  25)  to  have  it  changed; 
but  surface-water  you  must  take,  or  dam  it  up  :  that  you  can 
do,  but  you  ought  not  to  damn  the  surveyor  for  turning  it  on 
to  you. 


52  FARM    LAW. 

If  a  permanent  alteration  is  made  in  the  surface  of  the 
road,  by  water-bars,  spouts,  etc.,  as  to  constantly  turn  the  road- 
water  on  to  you,  you  may  perhaps  find  some  compensation 
against  the  town  under  the  public  statutes  of  Massachusetts, 
chap.  52,  §  12,  15  and  16. 

As  to  under-ground  water,  tlie  law  does  not  generally 
recognize  any  right  of  ownership  therein  ;  and  consequently, 
if  your  neighbor's  well  is  fed  by  springs  or  under-ground  rills 
from  your  land,  you  may  dig  down  on  your  land  to  any  depth 
you  please,  even  near  to  the  line ;  and  if,  by  chance,  you  cut 
off  the  supplies  to  his  well,  and  leave  it  dry,  he  must  bear  it 
as  well  as  he  can.  But  you  must  be  careful  in  digging  not  to 
dig  so  low  as  to  cause  his  land  to  cuve  into  your  excavation,  or 
you  may  be  responsible  therefor. 

And  here  I  must  give  you  a  little  caution  ;  for  while  the  law 
allows  you  to  altogether  divert  the  underground  water  from 
your  neighbor's  well,  it  does  not  permit  you  to  corrupt  it  by 
placjig  pig-pens,  privies,  etc.,  so  near  the  border  line  as  to 
percolate  through  the  soil  and  "  foul  the  well." 


CHAPTER  XV. 
TRESPASSIXG    ON    THE    FARM. 


The  general  rules  in  regard  to  trespassing  on  another's 
lands  are  pretty  well  understood  in  the  community,  but  on  one 
point  there  is  sometimes  an  erroneous  impression.  It  is  often 
thought,  that,  if  a  pei'son  simply  crosses  your  land  for  twenty 
years,  he  thereby  always  acquires  a  right  to  continue  the  prac- 
tice;  but  this  is  far  from  being  univei'sally  true.  The  very 
foundation  of  acquiring  such  a  right  (prescriptive  right  as  it 
is  called)  is,  that  the  crossing  must  have  been  adversely  to  the 
land-owner,  contrary  to  his  wishes,  or  at  least  without  his  per- 
mission, express  or  implied,  and  under  a  claim  of  a  legal  right 
so  to  do,  whether  the  farmer  is  willing  or  not.  If,  therefore, 
the   person   crossing  does   so   with    the  permission,  or  by  the 


TRESPASSING    ON    THE    FARM.  53 

mere  indulgence,  of  the  land- owner,  and  not  under  any  claim 
of  right,  it  is  wholly  immaterial  how  long  the  custom  has  con- 
tinued. Forty  years'  travel  l)y  consent  of  the  owner  would 
not  give  any  right  to  continue  to  pass  after  he  had  been  for- 
bidden to  do  so  ;  and,  to  avoid  any  misapprehension  in  such 
cases,  it  is  wise  for  the  farmer  to  put  up  notices  forbidding  it, 
as  we  so  often  see  done.  And  this  not  only  makes  it  clear, 
that  thenceforward  the  intruder  is  a  trespasser;  but,  by  a 
recent  law  in  Massachusetts,  he  is  also  made  liable,  after  such 
notice,  to  a  fine  of  twenty  dollars  for  wilfully  crossing  or  enter- 
ing upon  any  garden,  orchard,  mowing-land,  or  other  improved 
land,  between  the  first  day  of  April  and  the  first  day  of 
December.     Maine  also  has  a  similar  law. 

By  this  law  the  wilful  trespassing  on  such  lands  during  the 
summer  and  fall  months,  is  made  a  crime ;  and  any  constable 
or  other  of&cer  may  arrest  the  offender  on  the  spot,  and  take 
him  before  some  proper  tribunal  for  trial  and  sentence.  But 
at  all  other  seasons  of  the  year,  or  as  to  any  other  kinds  of 
lands,  such  a  trespass  is  only  a  civil  trespass,  not  a  crime,  and 
the  only  legal  remedy  is  by  an  action  for  damages  done,  which 
may  l)e  very  unsatisfactory. 

If,  however,  a  man's  object  in  coming  into  your  premises  is 
to  steal  your  fruit,  cranberries,  or  other  crops,  that  itself  is  a 
crime,  although  he  does  not  accomplish  his  purpose  ;  and  you 
may  put  him  out  by  force,  after  notice  to  leave,  using  no  un- 
necessary violence.  But  you  cannot  lawfully  set  spring-guns, 
man-traps,  or  other  instruments  which  may  do  him  grievous 
bodily  harm,  without  giving  notice  df  such  hidden  dangers. 
Perhaps  if  ample  notice  was  posted  up,  of  the  existence  and 
location  of  such  instruments  of  injury,  a  person  trespassing 
might  have  no  remedy  for  his  misfortune.  But  even  this  has 
been  pointedly  denied  in  this  country.  For  it  is  nothing  less 
than  murder  to  deliberately  and  intentionally  kill  another, 
merely  for  trespassing  on  your  grounds. 

The  old  school-books,  in  my  early  days,  had  a  picture  of 
boys  stealing  fruit  in  the  boughs  of  an  apple-tree,  with  a  far- 
mer picking  up  stones,  and  a  maxim,  that,  if  words  and  grass 


54  FARM    LAW, 

did  not  answer,  he  might  throw  stones.  But,  if  in  so  doing 
you  should  liappen  to  put  out  the  boy's  eye,  it  might  go  hard 
with  you  ;  for  you  have  not  a  right  to  kill  even  your  neighbor's 
liens  while  scratching  up  your  melons  and  cucumbers.  The 
custom  to  do  so,  and  toss  the  fowls  over  the  fence,  may  afford 
some  satisfaction  to  the  gardener  ;  but  it  makes  him  liable  to 
pay  the  full  value  of  the  nuisances,  although  he  had  repeatedly 
warned  their  owner  to  keep  them  at  home,  or  take  the  con- 
sequences. 

A  farmer  in  Connecticut,  who  had  been  greatly  annoyed  by 
his  neighbor's  hens  scratching  up  his  garden  seeds,  spread  a 
quantity  of  Indian  meal,  mixed  with  arsenic,  on  his  own  land, 
which  had  the  effect  designed  ;  but  he  had  to  pay  for  the  fowls. 
Shooting  an  animal  merely  because  it  is  trespassing  on  your 
grounds,  and  injuring  your  crops,  is  not  justifiable.  But  this 
is  not  so  as  to  a  flock  of  doves,  while  busy  pulling  up  your 
early  peas  or  sweet  corn.  While  so  engaged  you  may  shoot 
and  eat  them  with  impunity. 

Whether  this  rule  applies  to  an  old  cat  which  is  after  one's 
chickens,  I  don't  know  ;  but  I  mean  to  try  it  tlie  first  chance 
I  have.  Not  but  what  a  cat  may  be  in  the  protection  of  the 
law  on  her  owner's  own  premises,  as  a  man  in  Canada  recent- 
ly discovered,  when  he  had  to  pay  ten  dollars  for  the  fun  of 
shooting  one.  But  when  she  has  a  chicken  in  her  mouth,  or 
is  just  ready  to  spring  at  one  in  your  own  yard,  the  case  may 
be  different.  And  in  the  case  of  the  fowls  above  spoken  of, 
the  safer  .way,  instead  of  shooting  them,  would  be  to  buy  a 
smart  game  cock  that  would  soon  lay  them  all  out  in  wind- 
rows, as  a  good  old  deacon  I  have  read  of  did ! 

The  general  rule  seems  to  be  that  a  farmer  has  the  right  to 
kill  the  animals  of  another,  if  they  are  in  pursuit  of  his  own, 
and  there  is  reasonable  ground  to  apprehend  that  they  will 
attack  and  destroy,  or  carry  off"  the  latter. 

This  is  clearly  so  in  the  case  of  trespassing  dogs,  cats,  hogs 
and  such  animals.  The  right  to  kill  such  animals  is  not  con- 
fined to  the  very  moment  when  they  are  in  pursuit,  or  about 
to  immediately  attack  the  farmer's  animals  ;  but  if  from  their 


TRESPASSING    ON    THE    FARM.  55 

habits  or  former  conduct,  there  is  good  reason  to  believe  one's 
own  property  is  in  danger,  a  man  need  not  wait  until  the  dog 
has  the  lamb  by  the  tliroat,  or  the  cat  has  the  chicken  in  its 
mouth,  before  he  can  fire. 

An  interesting  illustration  of  this  right  to  kill  other  people's 
animals  recently  occurred  in  the  northein  part  of  New  Hamp- 
shire. A  farmer  had  a  flock  of  geese  swimming  around  his 
pond,  and  hearing  them  all  vigorously  cackling  one  morning, 
came  out  and  saw  four  minks  swimming  after  them  in  hot 
pursuit,  and  within  a  rod  of  them.  As  soon  as  the  minks  saw 
him  they  stopped  pursuing  the  geese,  and  ran  out  of  the  water 
on  to  a  little  island  and  then  stopped  a  minute,  but  long 
enough  for  the  farmer  to  get  aim,  and  he  killed  them  all  at 
one  shot.  A  law  of  New  Hampshire  forbids  any  man  to  kill 
any  minks,  sable,  or  otter  between  May  and  October  under  a 
penalty  of  ten  dollars  for  every  animal  so  killed.  And  the 
farmer  being  prosecuted  for  this  penalty,  it  was  decided  after 
very  elaborate  examination,  that  he  liad  a  right  to  kill  them, 
notwithstanding  the  law,  if  necessar}'  to  protect  his  own  ani- 
mals from  destruction,  and  that  it  was  not  necessary  he  should 
first  try  to  drive  his  own  animals  out  of  harm's  way  before 
killing  their  assailants.  The  decision  in  this  case  is  very 
elaborate  and  very  interesting. 

One  of  the  most  annoying  forms  of  trespass  to  the  farmer  is 
tiiat  of  hunting  and  fishing.  Many  persons  seem  to  suppose, 
tliat  by  force  of  some  general  custom,  or  otherwise,  they  have 
a  right  to  hunt  or  fish  over  another's  ground  as  they  please  ; 
but  this  is  quite  erroneous.  In  all  ordinary  streams  and  ponds 
the  right  to  fish  belongs  solely  to  the  person  owning  the 
adjoining  land.  If  the  stream  is  navigable, — that  is,  if  the 
tide  ebbs  and  flows,  or  if  it  be  large  enough  for  commerce,  as 
our  great  inland  rivers, — the  public  have  a  right  to  boat  up 
and  down  it,  and  to  fish  from  their  boats,  but  not  to  go  on 
shore  to  do  it.  And,  by  a  very  early  law  in  Massachusetts 
and  Maine,  if  a  farm  contains  a  "  great  pond," — i.  e.,  a  pond 
containing  over  ten  acres, — the  public  have  a  right  of  fishing 
and  fowling  there,  "  and  may  pass  and  repass  on  foot  through 


56  FARM    LAW. 

any  man's  'propriety'  for  that  end,  so  they  trespass  not  on  any 
man's  corn  or  meadow." 

The  recent  laws  authorizhig  fish  commissioners  to  lease 
large  ponds  to  private  jjarties  may,  of  course,  modify  the  for- 
mer rights  of  the  public  to  fisli  therein. 

As  to  salt-water  fishing,  the  law  is  somewhat  peculiar  ;  for 
although  the  owner  of  the  upland  ordinarily  owns  the  land 
down  to  low-water  mark,  as  before  stated,  yet  any  other  per- 
son may  go  there,  and  dig  clams  or  other  shell-fish,  if  he  can 
do  so  by  water,  and  without  crossing  the  upland  in  going  or 
returning.  The  Legislature  may  sometimes  abridge  or  modify 
tliis  right,  and  vest  it  exclusively  in  some  person  or  persons  ; 
but  the  ordinary  rule  is  as  above  stated. 

Another  still  more  common  and  annoying  species  of  farm 
trespassing,  is  that  of  berry-picking ;  but  this  practice, 
although  so  customary,  is  clearly  contrary  to  law.  •  And  not 
only  is  the  trespasser  himself  liable  to  the  land  owner,  but  all 
who  buy  and  consume  the  berries  so  picked,  are  in  danger. 
The  blueberry-canning  establishments  of  Jonesport,  Maine, 
were  recently  compelled  to  pay  more  than  one  thousand  dol- 
lars to  the  owners  of  wild  land,  over  which  the  berrj'-pickers 
had  long  roamed  without  leave  or  license,  although  the  latter 
had  been  paid  in  good  faith  for  the  berries  as  they  brought 
them  in  and  delivered  them  to  the  buyers. 


CHAPTER  XVI. 

OVERHAXGIXG    TREES. 


The  question  often  arises,  who  owns  the  fruit  of  a  tree 
standing  near  the  boundary  line  between  two  proprietors.  It 
is  generally  supposed  that  the  fruit  on  the  lirnbs  overhanging 
one's  land  belongs  to  him  ;  but  this  is  an  entire  mistake.  If 
a  tree  stands  wholly  on  your  land,  although  some  of  the  roots 
extend  into  the  soil  of  your  neighbor,  and  derive  support  and 
nourishment  from  his  soil,  he  has  no  right  to  any  of  the  fruit 


OVERHANGING    TREES.  57 

which  hangs  over  the  Hne  ;  and,  if  he  attempts  by  force  to 
prevent  you  from  picking  it,  he  is  liable  for  an  assault  and 
battery. 

In  one  instance  a  lady,  while  standing  on  the  fence  picking 
cherries  which  hung  over  the  line,  was  forbidden  to  do  so  by 
the  adjoining  owner,  who  was  at  work  in  his  garden  ;  and,  in 
the  scuffle  to  prevent  her,  she  received  some  bruises  on  her 
arm,  for"  wliicli  he  iiad  the  pleasure  of  paying  the  neat  little 
sum  of  a  thousand  dollars.  If  your  fruit  falls  into  your  neigh- 
bor's lot,  you  have,  I  think,  an  implied  license  in  law  to  go 
afid  pick  it  up,  doing  him  no  unavoidable  damage  ;  but  this 
may  not  be  positively  settled  as  yet. 

If,  however,  a  fruit-tree  stands  directly  in  the  division  line, 
and  is  what  is  called  a  "  line-tree,"  both  parties  own  the  tree 
and  fruit  in  common,  and  neither  can  cut  down  the  tree,  or 
seriously  injure  it,  without  being  responsible  to  the  other. 

Sometimes  persons  are  tempted  to  poison  or  secretly  kill  a 
neighbor's  tree  of  some  kind,  which  stands  near  the  fence, 
and  casts  a  baneful  shade  on  their  garden  plot  :  but  this  is 
dangerous  business  ;  and  the  party  doing  so,  in  Massachusetts 
Or  Maine,  may  possibly  find  himself  inside  the  county  jail  for 
a  twelvemonth,  where  the  rooms  are  apt  to  be  small,  and  not 
always  very  clean !  The  safer  way  in  such  cases  is  to  cut  off 
the  limbs  which  hang  over  your  side,  or  dig  down  and  cut  off 
the  roots,  which  undoubtedly  you  have  a  legal  right  to  do  ; 
but  it  would  not  be  safe  to  use  the  limbs  for  firewood,  or 
otherwise  convert  them  to  your  own  use,  lest  you  have  to  pay 
their  value,  more  or  less. 

While  speaking  of  "overhanging"  trees,  I  may  also  add  a 
word  about  shade  trees  entirely  on  your  own  ground.  Every 
man  has  a  right  to  cover  his  own  ground  with  fruit,  forest,  or 
shade  trees,  as  "  thick  as  they  can  stand."  And  if  so  be  a 
neighbor's  house  is  so  near  the  line  that  the  trees  make  his 
house  damp  or  unhealthy,  he  has  not  a  right  therefore  to  cut 
down,  or  prune  out  the  samg,  but  must  bear  the  consequences 

as  well  as  he  can. 

One  mora  caution  I  must  give  you  in  regard  to  overhanging 
trees ;  and  that  is,  if  you  have  a  tree  near  your  line,  which  is 


58  FAEM    LAW. 

poisonous  to  animals,  as  the  yew  tree,  for  instance,  and  you 
let  tlie  limbs  hang  over  the  fence  so  that  a  neighbor's  cow 
browses  them,  and  dies  in  consequence,  you  are  liable  to  pay 
for  her,  for  you  must  not  allow  such  dangerous  things  to 
spread  from  your  premises.  I  suppose  it  would  be  different  if 
the  tree  stood  far  away  from  the  boundary  line,  and  the  cow 
strayed  into  your  premises,  and  there  committed  suicide :  the 
verdict  might  then  be,  "  served  the  owner  right,"  he  had  no 
business  to  let  her  trespass  on  you.  That  was  the  case  once 
where  a  man's  cow  strayed  into  a  neighbor's  sugar  orchard, 
and  there  drank  a  bucket  full  of  maple  syrup,  which  caused 
her  death.  Her  owner  had  no  redress.  I  suppose  it  might 
be  the  same  if  cows  break  into  your  potato  iield,  and  kill 
themselves  eating  potato  tops,  on  which  you  have  used  "  Paris 
green." 


CHAPTER  XVH. 
BEWARE    OF    TRAPS. 


I  do  not  propose  to  discuss  at  length  the  general  laws  of 
purchase  and  sale,  or  of  deceit  and  warranty,  about  which  so 
much  may  be  said  ;  but  there  are  two  phases  of  special  interest 
to  the  farmer.  One  is  the  disappointment  resulting  from  the 
purchase  of  impure  or  spurious  garden-seeds.  It  is  now  well 
settled,  that  if  a  dealer  in  seeds  sells  an  article  marked  and 
put  up  under  a  certain  name,  and  it  is  so  billed  to  the  pur- 
chaser, this  amounts  to  an  absolute  warranty  or  guaranty  that 
the  seeds  are  what  they  were  bought  and  sold  for ;  and,  if  they 
turn  out  not  to  be,  the  farmer  has  a  remedy  against  the  seller 
for  the  money  he  paid  for  the  seed.  And  this  is  so,  although 
the  seedsman  was  honest  in  the  sale,  and  bought  them  for 
exactly  what  he  sold  them  for  ;  and  the  seller  would  have  a 
remedy  back  on  the  person  who  sold  to  him.  But  merely  to 
get  back  the  money  paid  for  the  seed  would  fall  far  short  of 
the  loss  to  the  farmer.  His  time,  labor,  fertilizers,  profits  on 
his  crop,  are  all  gone;  and  the  question  has  been  much 
agitated,  whether  the   seedsman  is  liable  for   all   this    loss. 


BEWARE    OF    TRAPS.  59 

And  it  is  now  generally  understood,  that  when  he  either 
expressly  warrants  the  seed  to  be  of  a  particular  kind  or  va- 
riety, or  when  he  so  sells  it  without  any  reservation  or  limita- 
tion, and  thus  creates  an  implied  warranty,  he  is  liable  for  all 
the  damages  directly  flowing  from  the  farmer's  use  of  such 
seed. 

In  one  instance  a  market-gardener  bought  of  a  seedsman 
"  early  strap-leafed,  red-top  turnip  seed,"  but  which  proved  to 
be  "  Russia  late,"  not  salable  in  market,  and  only  fit  for  cat- 
tle ;  and  he  was  allowed  to  recover  of  the  seller  the  difference 
between  the  value  of  the  crop  which  was  raised  and  a  crop  of 
early  turnips  on  the  same  soil,  even  though  the  seedsman  hon- 
estly thought  the  seed  was  as  represented.  And  in  case  the 
farmer  is  so  imposed  upon,  and  the  seed  proves  entirely  worth- 
less, and  his  crop  of  no  value,  he  can  make  the  seedsman  pay 
not  only  the  cost  of  the  seed,  but  also  for  all  the  labor  incurred, 
and  the  fair  profit  he  would  have  had  from  the  crop,  had  the 
seed  been  what  it  v.as  represented  to  be.  In  one  case,  the 
Shaker  Society  at  Watervliet.  N.  Y.,  had  to  pay  heavy  dama- 
ges, because  a  lot  of  seed  which  they  sold  as  "  Bristol  cabbage 
seed,"  came  up  a  wild  cabbage,  running  all  to  stocks  and 
leaves,  caused  by  the  fact  that  they  set  their  Bristol  seed  cab- 
bages in  the  spring,  near  several  rows  of  "  Red  Dutch,''  and 
the  two  varieties  intermixed,  producing  a  worthless  cross.  To 
avoid  this  serious  liability,  seedsman  at  the  piesent  day  very 
often  print  upon  their  seed-packages  that  they  do  not  warrant 
any  seed  they  sell,  which  may  perhaps  relieve  tiiem  from  their 
responsibility,  unless  they  knew  the  seed  was  not  true  to  name. 

The  other  subject  to  which  I  alluded  is  the  "lightning-rod 
nuisance,"  so  called.  For  several  years  past  the  agricultural 
community  has  been  overrun  by  swarms  of  unprincipled  men 
offering  for  sale  "  improved  lightning-rods,"  "  patent  pitch 
forks,"  "white-wire  clothes-lines,"  "force  pump  washers," 
etc. 

With  persuasive  cunning  they  prevail  upon  the  farmer  to  ac- 
cept the  agency  for  the  sale  of  the  article  in  his  town  or 
county,  with  reckless  assurance  of  the  profits  to  be  realized 
therefrom.     They  ask  him  to  sign  a  printed  contract  for  that 


60  FARM    LAW. 

purpose,  which  he  unsuspectingly  does.  The  articles  either 
never  come  to  hand,  or,  if  so,  they  are  worse  than  useless; 
and  the  agent  thinks  that  is  the  end  of  the  transaction,  and 
writes  to  have  the  I'ubbish  taken  away.  A  few  months  after- 
ward another  man  comes  round, — a  confederate  rascal  with 
the  former, — and  presents  the  farmer  with  his  printed  promis- 
sory note  for  a  hundred  dollars  or  more,  and  pretends  he 
bought  the  same  in  good  faith,  and  demands  payment.  The 
sio-nature  to  the  paper  is  genuine,  and  the  farmer  is  amazed  to 
know  how  it  came  there.  Xothing  but  a  law-suit  will  reveal 
the  fact  that  the  strip  of  paper  now  presented  has  been  cut  off 
from  the  bottom  of  his  agency  contract,  and  made  to  appear  a 
very  different  affair  from  the  real  one,  and  the  present  owner 
is  always  ready  to  swear  he  is  an  innocent  holder  for  value, 
and  without  any  knowledge  about  the  origin  of  the  note ;  hav- 
ino"  taken  legal  advice,  that,  if  so,  he  can  probably  recover  the 
amount  of  the  note,  notwithstanding  the  outrageous  fraud,  as 
has  been  frequently  decided.  While  in  many  states,  so  anx- 
ious is  the  law  to  protect  the  honest  farmer  from  the  schemes 
of  such  an  unprincipled  gang  of  swindlers,  that  it  has  decided, 
that  if  the  signer  was  not  really  guilty  of  negligence,  in  the 
eye  of  the  jury,  in  being  misled  by  such  a  rogue,  he  is  not 
bound  to  pay  the  note  to  anybody,  indorsee  or  not. 

The  honest  farmer  is  in  the  hands  of  a  set  of  accomplished 
villains ;  and  in  many  instances  their  plans  have  been  so  well 
laid,  that  either  he  is  compelled  to  pay  the  whole  note,  or,  to 
avoid  the  expenses  of  a  law-suit,  compromise  the  claim. 
Beware  of  these  miscreants  ;  shun  them  as  you  would  a  I'attle- 
snake.  If  there  is  one  place  hotter  than  another  in  the  world 
to  come,  they  deserve  that  corner,  living  as  they  do  upon  pre- 
meditated, cold-blo(?ded  fraud  and  deception. 

I  have  thus  imperfectly  touched  upon  some  of  the  leading 
rights  and  liabilities  of  farmers  ;  and  if,  in  this  brief  space, 
I  have  been  able  to  impart  any  valuable  information,  or  save 
you  from  the  many  entanglements  of  the  law,  or  even  to  inter- 
est you  but  for  the  passing  hour,  my  purpose  has  been  accom- 
plished. 


